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ISSN 2251-838X / Vol, 3 (S): 2844-2852 Science Explorer Publications

To ensure the criminal justice by Interaction of two

wings of the Justice Angel (Judge and lawyer)

Vali Shirpour

1

, Mohammadali Eslami

2

, Tahir Bakhshi Zadeh

3

1. PhD Student of Criminal Law, attorney at law, Member of Academic Staff, Department of Law, Payame Noor University (PNU), IR. Iran.

2. Master of Criminal Law and Criminology, Parsabad Branch, Islamic Azad University, PARSABAD, Iran 3. Master of Criminal Law and Criminology, Payame Noor University (PNU), IR. Iran.

ABSTRACT: One of the aspects of criminal justice in modern societies is the lawyers' participation in the preliminary investigation and trial. Diversity and density of activities process in the courts, has often limited opportunity to study and scientific analysis by the judge. But lawyers can review as detailed as case study based on the implementation of laws and regulations, as guideline to promote the hearing. It is important to realize that lawyer, meanwhile to respect all laws and regulations, has participation right in all trial stages, to guarantee the rights of the parties, respecting the rights of the accused and ensuring criminal justice. In this paper, to presence of attorney at the preliminary investigation of the criminal law and its role as two wings of Justice Angel beside the judges for the justice realization has been presented.

Keywords: lawyer, justice, rights of the accused, Justice angel, the preliminary investigation, judge. INTRODUCTION

The justice association bar is one of the independent institutions that can to play undeniably constructive role in establishing the law. Presence of attorney at law and lawyers in various areas of social and individual life is from the main characteristics of civil, democracy and advanced society. Advocacy is always an instrument to secure the criminal justice and fair trial, finally led to make the justice-seeking sense as one of two wings of the justice angel beside judges. Because most people are not able to protect their interests in various stages of litigation, In each case, the dignity, life, property, rights, housing and jobs of people, and in summary the respect of human personality (Article 22 of the constitution), freedom of belief (Article 23 the constitution) or enjoyment of persons of the freedom of press (Article 24 the constitution.) and other people is threatened and raped, it is necessary to presence an attorney at law for defending the accused in the court, and so by ensuring judicial justice, could to clear ambiguities points and finally to aid judges to issue the fair judgment.

To regard the public order, to conserve internal security, to perform laws, to regarding to the freedom and persons rights, to secure people, performing of the justice and other cases presented in the constitution is over than ability of judges, the mentioned rights is including the innate rights many ago years, to regard theirs as full as is related to benefit them from the equal defending possibilities, attorney is always as instrument to provide these aims, to ensure the criminal justice and fair trial leads to provide the justice-seeking sense. This statement: the justice angel is able to the flight by two wings of attorney and judgment, says the close relationship between advocacies and to ensure society justice. For this case, attorney has a background like trial institution even in the most preliminary form of it. Nowadays, there isn’t any debate about to presence an attorney at law in the court, when to establish the law and judgment in the society, it was necessary to presence a lawyer beside judge, but laws and regulations are not clear, comprehensive and full to dispute settlement, then anywhere is a lawful article, is necessary a judge to interpret it, and so an attorney at law. It is reality that it is necessary to presence attorney at law in the court, for ensuring the criminal justice, progressing of the judiciary to fair trial and avoiding the cases increasing, in this case, in the criminal affairs, right to have attorney at law, to presence lawyers in the court, for investigation, prosecution and trial and so to have sufficient time and possibilities for defending is from the accepted subjects in many countries. In other cases, there are legal limitations, especially in article of 128 in the criminal procedural code approved in 1999 and its note; it is observed the lawyers supervisory aspect instead of lawyers participation in the hearing that leads to lose the legal rights of the accused. (Aswar, 2006).

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Lawyer at the preliminary investigation

The importance of formal laws is more than the substantive laws, because the criminal procedural code at once and in the course of prosecuting or non-prosecuting of the accused people and so in guilt or innocence has the essential role and in fact to form the matrix of the criminal cases. Whereas the substantive laws to identify the type of crime and its punishments are in secondary stage of importance. For this case, the legislation used the necessary precaution for imposing and approving the criminal procedure code to defend the accused ones and to issue proper judgments. According to the various systems of trial such as charging, inspection, mixed and regulations governing on them, the role of lawyer would be different in judicial systems, we will briefly describe them.

A: charging system

Charging Justice System is one of important historical methods in the criminal proceedings. Characteristics and the principles of this system can be outlined as follows:

First: There is no official body which makes this system to be responsible for prosecuting crimes; inevitably, this task is delegated to the loser for loss claim. Whenever the injured does not complain damage as a result of the crime, judge no hears to this charge.

Second: the trial is as verbally, there are no written case, the statements of the parties is not written, and private plaintiffs complain verbally and the accused defends as to same way.

Third: the hearing is openly, that is that people can be present in court to see its stages, hear the parties Statements and know trial course and assess it.

Fourth: The trial is as defensive, the private complainant charges, the accused defend it, Private plaintiff and the defendant in a lawsuit are same, and Even to the research from witnesses is done by parties, not by the judge.

Fifth: Judges as impartial arbitrators see the trial scene, after listening parties, examine their reasons, and then try to vote.

It is presented that the statements of both parties and their attorneys as expressly has important effect in trial.

B: inspection system

Historically, the inspection system arose after the charging one, and its features are to have the professional judges, prosecutors and judges' unity, being written proceedings, the open proceedings. This system for maintaining and to protect the society is extremely useful. But the main problem of the system is that the defendant in favor of society is ignored, however to be secret and suit are its weakness points. To do the preliminary investigation is unlike charge system but judge has active role in the criminal case, upon notice of the offense and even before defender complain begins investigation Separation of the official investigation and prosecution authorities, which are common in most countries, have no place in this system, not to be suit leads to be non-informing of the defendant which has been collected without his/her presence and no attorney involvement minimize right of defense by the defendant the possibility of holding a hearing is omitted (Akhondi1993).

C: the mixed system

To avoid the disadvantages of the systems used in the charge and inspection system and reasonable use of the merits of both, a new method was developed that is both affected, The emergence of this system goes back several centuries, in the first time to be enforced in France, French scientists have had a major role in its development which was called as the French system. In according it, Criminal proceedings into the preliminary investigation is as inspection and in trial system is as the charging. Another innovative feature of this system is that this separation between the prosecution and the investigation has been done; the prosecution office is responsible for investigating and collecting of data. (Ashori, 1993).

Of course, in recent decades, to be Inspective aspect of the preliminary investigation has reduced, and tries to follow the rules of charging hearing in the preliminary investigation, more specifically its trial aspect. Its characteristics are the right to defend for the accused and its expansion in the preliminary investigation stage, as above mentioned, in twentieth century the preliminary investigation is assumed trialing more than previously and its inspective aspect has reduced. For example, in according to the part one in Article 114 of the Criminal Procedure Law of France, Investigation of the parties, the complainant and the accused will be given only in the presence of their lawyers and section 2 of the same law, about to investigate from defendant or the plaintiff is provided that its cases about four days before hearing must be provided to attorneys (Ashori, 1997).

In Iran's penal system, formerly a note appended to Article 112 of the Criminal Procedural code was provided for this case, at now, some limitations in the clauses of Article 128 and its following note of the of Criminal Procedural Code of the General and Revolutionary Courts 1999, unfortunately, the lawyer remains away from criminal records and to be unawareness from contents of cases leads the lawyer can not to defend

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effectively. Prohibiting lawyer's interference and advice during the preliminary investigation stage is contrary to the philosophy of attorney presence and absence of the accused in the hearing session of witness, and visiting the site eliminates the possibility of an effective defense. (Qasemzadeh, 1997).

Attorney presence as a guarantee for the right of the people

After the crime occurrence, two rights are face to face, On the one hand, and right of the society and victim who has suffered damage, and in the other hand the rights of suspects and accused criminal is presented. To defend right of the society and victim, the prosecuting office acts to the public prosecutor presidency. According to Articles 3 (Section A), 14 (section B) and 20 (Note 2) Law amending the General and Revolutionary Courts Act 2002 and Article 16 of the Executive Regulations of the law,is responsible for the crimes, prosecute offenders, preliminary investigation, lawsuit to protect the rights of God and the public and to perform verdicts. In the offenses with private aspect, the prosecuting office actions begin by private complaint, and the prosecuting office in order to defend the rights of the community and victim has extensive features and options, and can summon the suspect or accused, draw or even a ban and it has the right of inspection, seizure of objects and entering to homes and places. Then, the criminal justice provides the suspects and the accused ones can to defend themselves freely and efficiently.

From the legal view, much of the rules and regulations have created to make a balance between the rights and duties of officials and people and to regulate and develop community relations. Purposes of criminal laws and criminal procedural code are the protection of human dignity and the rights of defendants in legal prosecution, trial, offenders nurture and their rehabilitation for coming back to the society and life. Through historical approach to the regulation and criminal law, we found that to respect defendants' rights and to use the defending right are more concerned by Legislators and hence defending right as an inviolable principle of law recognized by all civilized nations, in most of the formulated, statute and common laws and regulations, presence of attorney in the court and necessity of defense is recognized.

"From set of principles and criteria can be concluded that generally defense right is to prevent any kind of abuse, attack against any invasion to human material and spiritual life and in the special mean is free use of all means and legal means against any charge and litigation."(Goldouzian, 2001).

In Iran's law, rights of the defense is recognized as a sacred principle that the manifestation of its principles and provisions in the constitution and other legal materials is manifested, there are different principles in the constitution to ensure the rights of defendants, here refers to the extensive legal features for defending of defendants rights.

Article 32 of the constitution states: " No one can be arrested without a warrant and the order will be determined by the law, if arrested and charge evidences should be notified immediately in writing to the accused, and within twenty-four hours the initial case was submitted to the competent judicial authorities, and trial preparation will be provided as soon as possible, violation of this rule will be punished by law."

Article 35 of the constitution states: "In all courts, choice of lawyers for the parties is entitled, and if they have not the ability to choose a lawyer, facilities to choose lawyer should be provided."

Principles 33, 34, 37, 38, 39 and 40 of the constitution are the subjects that compliance and strict enforcement will result to ensure the rights of defense of individuals in society.

Criminal Procedure Act, adopted in 1999 and many different materials has been envisaged in order to defense rights; the most important ones are the following:

Investigation ban on chastity crimes, in according to article 43 of the law, "Research on crimes against chastity is forbidden, unless the crime to be evident, or have a private complaint who the latter is done by the judge."

Summon the defendant before the calling: "The court should not call anyone or draw unless there are sufficient grounds to call him or get » (Article 124 of the Criminal Procedure Act, approved in 1999).

Right to object to the issuance of the temporary detention of the accused in according to article 32 of the law of courts and the Islamic Revolution in Criminal Procedure, to investigate defendants Witnesses without previous summon in according to article 191, Defendant's right to silence in according to article 197, Barriers to prosecution in Article 6 of the mentioned Law, and the right to use the lawyer at the preliminary inquiry in according to article 128, In general, the strict enforcement of the law and criminal procedure is to guarantee the rights of the accused.

By studying the rights of the defense and its diversity in the mentioned law, the question arise that strict compliance with the law, according to the multitude and variety of crimes and criminal proceedings without lawyer present, whether it was possible? Familiarize the parties to the hearing will usually wastage of courts time? Surely the answer is positive, with a little understanding; the role of lawyers in its realization is understandable and readily apparent.

This is due to the fact that In addition to an accused person, a knowledgeable legal lawyer should be presented in judicial authorities to defend the rights of the accused, to clear the issues and events, and the judge could issue the fair verdict by further insight and free of errors and perhaps that is for this reason that the

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court should not deprive the accused of the right to defense and professional services of lawyers In other words, a defendant should not be left defenseless.

The lawyer's duty not to deceive the judge, to obtain error-free verdict, justice is to the interest of his client, the responsibility of counsel at the hearing is to show the way, In every way, the reasons adduced based on realities, and the court issue a verdict based on speculation and no conjecture, and asked for an judgment based on the justified and documented reasons (Bushehri, 2002).

To ensure the rights of the accused in the presence of lawyer at the preliminary investigation stage, it is essential to observe the following points:

Presumption of innocence

In the ago years, presumption of innocence of the accused was not accepted when a crime occur, and the complaint inability to provide sufficient evidence against the accused, responsibility was transferred to the defendant to prove innocence, For example, Article 132 of the Charter of Hammurabi, On the charge of adultery says: " If a married woman is accused of sex with strange men But her husband has not slept with another, She must prove his innocence once and be immersed in the holy river "(Hosseini, 2000).

Practical principles of Islamic law on the topic include of the scientific principles, Presumption of innocence, discreet and will. In recent centuries, lawyers, legislators, regional and international declarations and conventions have been attended and accepted (Khamenei, 2010).

After World War II, the presumption of innocence was more studied; Emphasis on individual rights and liberties in the presumption of innocence in criminal proceedings became more important, The United Nations Universal Declaration in 1948, in compliance with Article 11 of the presumption of innocence underlined, Paragraph 2 of Article 6 of the European Convention on Human Rights has also emphasized the presumption of innocence" Every accused person is presumed to be innocent Unless his guilt is proven in legal way. ' American Declaration, Article 26, paragraph 2 of Article 8 of the American Convention on Human Rights, paragraph (b) of Part 1 of Article 7, of the African Charter and paragraph 5 of Article 19 the Declaration of Human Rights on this matter are clear all) Islam, 2006).

Presumption of innocence is today's common heritage rights of all progressive nations of the world, and formally its sovereignty over criminal trials for the first time in 1789 in the French Declaration of Human Rights has accepted. According to Article 9 of the said Act, individuals are presumed innocent until convicted.

Principles 31, 32 and 37 of the constitution of Islamic republic of Iran, Iranian lawmakers implicitly or explicitly accept the presumption of innocence on the need to ensure freedom of citizens and prevent withdrawal, except in exceptional circumstances to warrant the legal rules, providing a fair and impartial trial, as soon as the preliminary investigation and prosecution has stressed in defendant's rights of defense.

Article 37 of the constitution provides:" the presumption of innocence is the principle, and no one who is not guilty in view of law, unless proved guilty by a competent court. "

However, the rules of what is desired, is that First, the court cannot even to initiate to culpability of defendant on his legal duty, to bear the burden of proving guilt, and any doubt or ambiguity of interpretation is in favor of the accused, Second, the court must evaluate the possibility of rejection, and cancellation charges for the accused, fault and charged only by reason of the law is impossible to trace directly verifiable. The presumption of innocence is one of the fundamental principles of criminal trials, supports the rights of citizens against public entities.

Before proving in a competent court, under the law, any public official comment on the responsibility and culpability is violated presumption of innocence and in addition to any limits established for persons before its discovery temporarily, and the charge of violation of or default reasonably be considered to be guilty, In general, the principle of independence and impartiality of the court in all cases was cancelled against the accused, it can be said that the presumption of innocence is to be ignored, Indeed, in cases where a court or judicial authority to renounce innocence by reasons, the innocent Is required to prove his own innocence, and this is contrary to the principle (Goldouzian, 2001).

The necessity of the right to have lawyer

In the laws of some countries, including Syria, Germany, Belgium, France, Russia and Azerbaijan, The investigating judge was required prior to the interrogation, defendant has right to have attorney and this announcement will be inserted in the minutes of the interrogation.

Paragraph 1 of Article 136 of the Criminal Procedure Law of Germany says: The defendant should be declared there is legally free action for him, to answer on the charges. However, no say or to choice a lawyer.

Article 114 paragraphs 3 of the French Criminal Procedure Law, investigator is responsible for the assignment, Prosecutor to notify the defendant's right to counsel the authorized attorneys (official) or Student Judicial..., In this century, according to the votes issued of the French Supreme Court, The investigating judge announce to the defendant right to have lawyer, in the first time, Inherent right of defendant, if an explicit cancel of the committed, leads to invalidity of the investigation and in according to the judgment, even willing to

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present comment without attorney by the defendant, Cannot to deprive the magistrate about the right to have lawyer, and to Include it in the minutes, and finally, the right to counsel only refers to the specific investigation and cannot be extend the accused satisfaction of giving to comment further, However, can to investigate without lawyer presence. (Asvar, 2006). According to paragraph 3 of Article 49 of the Code of Criminal Procedure of the Russian Federation, Lawyer must be present at the trial hearings in the following cases: 1 - from the moment to invite as the accused.

2 – from the second trial of a criminal case since the arrest of the accused persons specified in Articles 100, 92 and 91 of the same law.

3 - From the moment of decision on actions and measures that can be charged with violation of rights and freedoms.

4 - From the moment to issue verdict for the accused.

According to article 61 of the constitution of the Republic of Azerbaijan, Every Azerbaijan citizen has the right to have legal assistance in high level. In cases where a law has considered, legal support is free and by government aiding. Every person from the moment of arrest, imprisonment, or and to be the accused has the right to counsel with lawyer for the benefit of legal protection.

Article 19 of the Criminal Procedure code of the Republic of Azerbaijan: During the criminal investigation by the court, investigating judge, interrogator, the prosecutor and the court must declare the defendant's right to counsel with lawyer, necessary measures for the benefit of the plaintiff, the defendant from high level of legal protection is considered. The institution (court) in the Criminal Procedure Code of Azerbaijan Republic, in the cases set forth in the Act and the cases stipulated in Article 19 of this Law, compelled to supply the rights of defense, or the person alleged to be a crime. (Shirpour, 2009) It is normal to inform to the accused the rights to counsel can to help for executing the justice in the best way to ascertain the goal of the legislator, the right to counsel at the preliminary investigation and lawyer presence will at least prevent that the defendant appealed to the Court regarding the legality of investigation methods, or to do torture In the initial stage of preliminary investigation, Value of the acquired reasons at this stage would undermine. Unfortunately, in Iran's law, the legislator has not provided such right in the preliminary investigation stage in the prosecuting office and court bailiff, but legal restrictions in Article 128 of the Criminal Procedure Act 1999, in some cases, has given the disciplinary aspects to lawyers, It's axiom that these legal vacuum is to waste the defendants rights, and unawareness accused may to say inappropriate things to own Irreversible detriment, Therefore reasonable expect from all lawyers in the criminal justice is that It's important to remove the law vacuums by reforming of the Criminal procedure law. (Omidi, 58, 2004)

To forecast the accuser's right to counsel in the preliminary investigation needs to recognize the rights of the defendant as the following:

Having a good time by the accused to select and communicate with lawyer

According to the provisions of Part II, Section 3 of Article 14 of the International Convention on Civil and Political Rights 1966, everyone shall be charged to a criminal offense, the accused has right to having a good time for selecting lawyer, time necessary for the defense is based on several issues, Such as the type and nature of the charge, the complexity of the charges and whether the accused to defend himself personally or through attorney, in view of American Commission of Human Rights, times such as 24 or 48 hours, is not considered as good time in any way (Amir Arjomand, 2006).

Nevertheless, unique time in this regard has not been predicted in Iran's law, this is judicial discretion, but according to Clause 9 of Article 92 of the Criminal Procedure of the Republic of Azerbaijan, lawyer has right s to know the accused crime type and nature and so to speak with his without time restriction as friendly, to participate in the investigation and trial stages and to announce the defendants rights. (Huseynov, 2009)

Having suitable possibilities by the accuser to select and communicate with lawyer

These facilities are the necessity to determine the attorney due to the defendant's financial inability to pay the honorarium, although it was originally provided in the constitution (article 35) article of determining attorneys approved by Expediency Council approved 07/11/1991, for all parties in all courts and crimes. But the Law of Criminal Procedure, Only in hearing stage of the criminal courts has been predicted such rights for defendants (Clause 1 of Article 186).

In Azerbaijan country, this fact has been foreseen in Article 61 and 33 of the constitution, but such as Iran's law, it is predicted for only accused person, the court has no duty to the plaintiff who is unable to choose a lawyer.

These facilities are possible access to all documents and evidence for defending, providing the necessary facilities to communicate with his attorney and in preliminary investigation stage in the prosecuting office, Regardless of whether such right in the courts in the country's legislature has been anticipated. Paragraph (e) of Part 2 of Article 8 of the American Convention on Human Rights says that: If the accused does not defend him personally or do not introduce lawyer, it is the inalienable right, Lawyer was introduced by

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the government to help him, to determine whether it may or may not be given a lawyer. These rules seem that due to our adherence to the rules of international human rights, in the preliminary investigation, according to the asking for the accused or for the justice, Courts should to make the necessary facilities, facilities for the selection and presentation of the defendant's attorney, this requires that the legislature would be expected.

Civil rights

The statement of civil rights for first time was raised in France declaration of Human rights in 1789 and based on the doctrine of physio-crats and idea of natural factors thought proponents. According to articles 12 and 16 of the mentioned Declaration, the respect of citizens' rights by a public authority is emphasis and guaranteed, if not to guarantee the performing of law, No trace of the constitution would not be. In 2004 Law under the Act respecting the legal freedoms and rights of citizens in public session dated 15.2.83 passed in our Parliament, on 02/16/83 the Just a day after its passage in the parliament was verified by the guardian counsel. This rule contains a single article or 15 sections and is approved 23/12/83 and an Executive instructions relating to Section 15 of the Act. On The single article from date of its approval, all public courts, the military, prosecutors and court judicial Power shall have required to perform it. A single article Stated in the context of civil rights, Article 3, requires which Courts and prosecutors has to respect the right to defend the rights of the accusers, and they provide the opportunities for the use of lawyers and experts "(Asvar,2006).

Assertion to the right of defense of the accused and the opportunity to use lawyer, Courts and prosecuting office is from positive points in this law, but this right, in the article 35 of the constitution and articles of 185 to 187 of the Procedure Act public and revolutionary courts in Criminal matters1999already been stressed. Unfortunately, with the passage of subparagraph (g) of paragraph 7 of Article 130 of the Fourth Development Plan Act has been violated again 11/06/2004.in spite of inclusion of these rights in the prosecuting office stage in Section 3 of the Act respecting the legitimate liberties and civil rights was first thought that subsection of article 128 of the Criminal Procedure Act approved in 1999 is obsolete. But unfortunately as above mentioned, by approving the later Fourth Development Plan Act, The right is violated again, the judges to prevent the practice of lawyers, especially in the prosecuting office.(keshavarz,2005).

Regardless of the versions mentioned under subparagraph g of paragraph 7 of Article 130 of the Fourth Development Plan, its contents over the defending rights of the accused and to provide the opportunity to use a lawyer, is not free from error and uncertainty. For example, the defending rights of the accused to be prepared just in case feel freedom, in the natural situations, and without any sense of restraint defend him, but the current law, if a defendant to be in detention, his case to be before the issuance of the indictment, can to provide the conditions for his defense? The section has emphasized on creating opportunities for the use and benefit of the defendant's attorney. But it is only under power of attorney signed by the defendant? But in the investigation stage any lawyer can not to defend their client rights and not even in the preliminary investigation stage, it is the basis of criminal proceedings can not to study the case, what is meant to use the lawyer? Do not be forced to accept the presence and intervention mechanisms of lawyers in all stages of the proceedings, in the prosecuting office and courts. With all these circumstances, the right of a citizen who is in charge, from the first moment is violated and cannot be avoided.

For supervising the implementation of this law and similar laws, Bar Associations can be considered as one of the best monitoring tools but the action has not been taken from section 15 of this Act, for supervising the implementation of this law, only members of the judiciary deputies has been named as the Central Supervisory Board, in fact, for supervising the implementation of this law has pointed to the judicial Power, While the officers are the opposite point of the accused, and appears to be as far as possible Other relevant organizations, including lawyers centers can be used to further protect the rights of citizens should be respected.

Finally, Rights and those listed in the Act, Earlier in the constitution or the criminal law has been presented, In fact, the law is the emphasis on it, and this is not a new title, although to inform citizens to their legal rights is very good, but it seems If accurate and robust enforcement actions and compliance with these rules will be considered, there was no need to develop the law, Unfortunately, there is no sanction for the implementation of these principles and rules, It is a general misconception that we bring the principles and content of a constitution in the framework, Then the Circular to become law.

Necessity of presence of the lawyer in the preliminary investigation

The mandating principle of lawyer participation in all phases of criminal stage in most countries of the world have been doing and accepted for ego years, today, with the progress that has been made in the rules of criminal, to allow defendants to present the preliminary investigation to benefit lawyers, Constitution guarantees the right to counsel of the accusers, And philosophy of the right in the preliminary investigation stage, since it is due to that The accused defended themselves against officials familiar with the legal issues, able to take helping from the aware and expert people, to make equality between his and officials to use of information and experiences effectively, Lawyer presence not only in terms of knowledge and legal precedents in defense of the

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accused is important, But to deny the illegal abuse of judicial officers and judges in collecting non-legal and illegal reasons.

In most countries, based on international documents and conventions, even at the stage of charge, right to Counsel to the accuser's be informed and reminded, The a lawyer has right to refuse for answering the questions, Thus, the International Covenant on Civil and Political Rights requires that defendant's right to counsel with attorney and to accept lawyer in the different stages, In the absence of the defendant's financial ability to set his free lawyer, Therefore it is explained in paragraph 3 of Article 14: "Anyone is accused of a crime, Will have the following minimum guarantees in full equality, adequate time and facilities to prepare his defense and to communicate with lawyer. " Paragraph 1 of Article 11 of the Universal Declaration of Human Rights explicitly guarantees the right to the defendant as a defense, says that: "Anyone is accused to a crime, shall be presumed innocent, until in the public lawsuit in which all necessary guarantees to provide him for the defense, his fault be established by law "(Akhondi, 2005).

Article 35 the constitution of the Islamic Republic of Iran provides that "In all courts, the parties have the right to determine lawyer, and if they do not have the ability to choose a lawyer, must to provide legal facilities, It is noted that the constitution of the Islamic Republic of Iran to abide by international documents.

Principles and rules of the criminal proceedings had been taken of the France procedure law, however, when its writing, some materials that is not accepted and removed such as the presence of lawyer in the interrogation investigation.

Article of 112 Act in the following amendment has chosen an intermediate approach, For example, if the defendant's lawyer was present, the judge must accept it. At this point the lawyer was not involved in the investigation and defendant answers personally, after the end of the investigation for the proper execution of the laws or innocence, if necessary, lawyer answer it, Were included in the minutes. Note under Article 112 of the former Code of Criminal Procedure provides that:" the accused can to accompany Lawyer, after interrogation without involvement a lawyer in the investigation, can be present Items to defend or clarify the law if deems necessary, The lawyer's statement is reflected in the minutes". Despite the limitations mentioned in article, Attorney presence in the preliminary inquiry is a Step in order to strengthen the right of the accused, But in practice, through such privileges only to those who use it, are benefited.

New legislation in the Criminal Procedure Act 1999 in respect of the right to an attorney during the preliminary investigation, the provisions of Article 112 of the former, with little change in terms of Article 128 with the addition of an amendment has been ratified.

Article 128 of the Criminal Procedure Act in the public and Revolutionary courts affairs 1999 requires" the accused can to accompany Lawyer, Lawyer without intervention can to present subjects to clarify the fact, The lawyer's statement is reflected in the minutes".

This subject is as inspection in preliminary investigation proceedings, the essence of the subject has not important objection, but the problem is its amendment. Note: Article 128 provides that: "Whereas the issue is confidential, the judge determined that other presence leads to corrupt, also on crimes against national security, attorney presence would be by allowance of the court." Note is not consistent with legal principles the logical and may be considered an insult to the Bar, because lawyer for his defense is accused, so how his presence could is causing corruption? On the other hand this Note is incompatible with the philosophy of the defense liberty of the accused, it is a form of legislation regression (keshvarz, 2001).

The amendment provisions not only in our right; but in the world it is new, whereby in three cases, if the judge fails, the defendant will be deprived for having a lawyer;

1 – If there is the secret subject. 2- If another presence leads to corrupt. 3 - Crimes against national security.

To determine to be the secret, corrupt, Crimes against national security, is by the judge. For this case, judge can easily deprive them for taking a lawyer due to have corruption. This exclusion is particularly in important crimes having the criminal penalties, including death, stoning, amputation, life imprisonment and etc, in preliminary investigation it is fatal, and forms the basis for a criminal case; it is not consistent with the law.

Access to the case in the preliminary investigation by the defendant or his attorney

Attorney for the defense of the rights of the accused must inspect all papers, records such as minutes of meetings, certain expert reports etc, And failure to provide it to the attorney in fact to deprive the defendant of the rights of defense ,it must be considered in the investigation. It is worth mentioning, there are opposite views regarding to read the contents of the case in the preliminary investigations by attorneys, Legislative enactment of Article 198 B provides to study the case subject to the completion of the investigation. It seems according to Article 128 explicitly mentioned, is allowed to the Intervention in order to discover the truth, defend the accused and law enforcement. This requires a careful study of the case by the lawyer. In cases of doubt should be interpreted in favor of the accused. Taking notes at a time of preparations for defense is permitted.

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Given the significance and role of the defense attorney in the investigation should be added that in the Criminal procedure law in several cases, the legal defense of the accused has been provided, Due to the specialized nature and complexity, Necessary involvement of lawyers who are familiar with the fundamental principles of judicial and legal considerations in the investigation is certainly considered. Lawyer has the right to remind the proper implementation of laws and strict observance of the rights of the accusers. There's also a sense of a legal support, confidence and equilibrium for defendant, however, the article notes in a few years are going to pass a law, has been abandoned and are not implemented in practice by courts, but it must be acknowledged that this note is opposite with the philosophy and objectives of regulation provisions of the Criminal procedure Code, and With the provisions of the constitution (Article 35) and the ordinary resolutions and the principle of legal certainty is incompatible. The provisions of the legislation is opposite with the provisions of the Expediency Council, dated 11/07/1991, and Article 128 public and Revolutionary courts procedure Act, extracted from 112 the recent criminal procedure Act, Defendant's right to legal representation in the court is recognized, its note that the top is in conflict, general principles of criminal law to define clear rules and regulations are contrary to law.

In order to confirm the above views, Piece of contemporary French lawyer Jacques Hamlen who his book have been translated by the doctor the Abu al-Qasim Tafazzoli, we present: "First you must understand that no deprivation is fixed. Often the accusations are inferred based on allegations and conjectures, no by Certainty. No doubt, collecting evidence to prove the crime is related to the judge, evidences must be obtained that to be stronger than confession, but all investigations, likes any other human actions, is subjected to the wrong, and under the influence of the evidences is changing, the Investigating judge to prove the charges through the witnesses, These statements are often based on biased or wrong "(Asvar, 2006).

Interrogating judge uses more tools during the investigation like blind but necessary police devices; the fight between the two non-equal branches begins, in one hand a defendant is without weapons, in other hand is the society with all possibilities, for making equilibrium between them, to be lawyer in this case is necessary and the role of lawyers in near of prosecutors in the investigation stage when it is effective and useful, that his duty is to do it with honesty and integrity, to have the right to defense and choose a lawyer is the weight that will preserve the balance of the scales of justice, and to prevent the unfair judgments by the judges.

CONCLUSION

The right to defend is known as human natural rights and in all legal systems has been recognized as a fundamental principle, its effects are reflected on different principles in the constitution and rules of criminal procedure, one of the most important defense of the rights of the defendant and the plaintiff is entitled to have an attorney, to respect other defensive rights through enjoying their legal knowledge and experience, and to clear the events and issues in the cases, for helping to the judges to issue the fair judgment.

The lawyers at all stages, especially in the stage of preliminary investigation proceedings have been extremely positive, they are as the assistant for discovering truth, to ascertain justice , civil right and the people's rights. In addition to the recognition of the right to counsel at the preliminary investigation stage,to provide defendant's right to counsel, case study, to attend hearings, witnesses, local checks, and ... to perform Human, legal and professional duties effectively. Lawyers can as Lawyer, with sufficient knowledge of the law, rules of procedure and the judge should refrain from mentioning the discovery of the reality and to help recognition of the right and the execution of justice. These all the reasons for the necessity of correcting certain limitations stipulated in Article 128 of the Criminal Procedure Code approved in 1999 and its notes, Article 128 of the Criminal Procedure Act in the public and Revolutionary courts approved in 1999, regardless of the presence of a lawyer during the preliminary investigation, But basically restricting a lawyer involved in the investigation and prevention counseling at the defendant's preliminary investigation has been inconsistent with the philosophy of attorney, Attorney for the defense of the rights of the accused must study all cases, notes, documents, the outcome of audits, examinations, , and expert reports and etc, So if did not provide for attorney, in fact it is to deprive the defendant from the right to be considered at the stage of preliminary investigation.\

REFERENCES

Akhondi M. 1993. Code of Criminal Procedure, fourth volume, ninth Edition, Tehran, published by Majd Publications.

Akhondi M. 2005. Code of Criminal Procedure, first volume, Eighth Edition, Tehran, published by the Ministry of Culture and Islamic guidance.

Arjomand A. 2006. A., International Human Rights Instruments, Volume II, first Edition, Danesh pajoh publication. Ashori M. 1997. criminal justice, first Edition, Publishing by the Ganj danesh publication.

Ashori M. 2005. Code of Criminal Procedure, first volume, first Edition, Tehran, published by the Ministry of Culture and Islamic guidance. Asvar M. 2006. MS thesis "attorney in the Iran's criminal law " Islamic Azad University, Ardabil.

Bakhshi Zadeh T. 2011. MS thesis "attorney in Iran law ', Islamic Azad University. Bushehri J. 2002. criminal proceedings, first edition, Publishing Company of Enteshar.

Ghasem-Zadeh A. 1997. Interrogation courses, published by Tehran University, Faculty of Law and Political Science. Goldouzian L. 2001. Claim evidence, Eighth Edition, published by Justice Office,B-Foreign resources (Turkish)

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Hosseini SR. 2000. The defendant's defense right, No. 28, Journal of Legal Culture and Social Justice. Hüseynov A. 2009. Az rbaycan Respublikasının Cinay t-Prosessual M c ll si, bakı, digesta n riyyatı keshavarz B.2005. Civil rights, 4 and 5 No, Kermanshah and Ilam Bar Association magazine.

Khamenei HESM. 2010. Attorney in lawsuits, according to the website www.iranbar.com.

Omidi J. 2004. "Defendant rights in the Court based on international and regional human rights instruments", No. 2, Center Bar Association Journal.

Shirpur V. 2009. ran islam respublikasının cinay t-prosessual qanun vericiliyind mudafi çinin huquqi statusu, Az rbaycan milli elml r akademiyası f ls f v hüquq institutu n riyyatı

Zandi MR. 2004. 432 points of the Public and Revolutionary Courts Amendment Act, approved 81, Ashrafieh publication. Zeraat A, Mohajeri A.2001. Code of Criminal Procedure, Volume I, published by Fekrsazan.

References

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