Document Type : Original Article
Highlights
Witness rights in administrative investigations; A comparative study of Iranian law and international documents
Administrative investigation is a process that legally competent administrative officials use in order to discover the truth. In the process of administrative investigation, the investigation officer in a position similar to the criminal investigation officer, uses different mechanisms to discover the truth. One of the ways to obtain facts and gather evidence is to listen to the testimony of witnesses and obtain information from witnesses and informants, and among these, one of the important issues is the issue of the rights of witnesses and informants. A witness is one of the main actors of the criminal justice system, who plays a prominent role in the fate of criminal cases. The importance of the role and participation of the witness in the process of criminal proceedings goes back to the field of "reason"; Because one of the most important pieces of evidence that is widely used in judicial systems is obtaining the testimony of witnesses. Despite the great importance of securing and guaranteeing the rights of witnesses and informants in the process of administrative investigations, this issue has not been given enough attention in research activities. Defendant's defense rights are considered as an integral part of a fair trial in regional international documents and domestic regulations of countries and cannot be limited; Because this right is a legacy that human society has gained after endless efforts over the centuries. However, the implementation of some actions, such as keeping the identity of witnesses a secret and protecting the victim, is more and more in serious conflict with a number of rights of the accused, including the right to question witnesses or the principle of equality of arms in the proceedings. Therefore, the importance and necessity of this research can be to examine and provide a solution in cases where conflicts between the rights of the accused, the victim, and the witnesses are revealed in the action stage, which poses a serious challenge to the realization of the principles of fair trial. Therefore, this research seeks to answer the question that according to the rights stipulated in the Criminal Procedure Law as well as the Statute of the International Criminal Court, on what basis are the rights of witnesses in the process of administrative proceedings?
In this research, with a comparative approach between Iranian law and international documents, including the Statute of the International Criminal Court, while identifying some of the most important examples of witness rights in administrative investigations, we seek to provide a legal framework that these rights and guarantees can also be applied for witnesses and informants in administrative investigation process.
1) The right not to face the witness and the accused in person: One of the protective measures that have been identified in order to ensure the psychological and physical safety of witnesses and informants in the investigation process is the right not to face the witness and the accused in person.
In order to guarantee the right of the witness and the accused not to face each other in person, some protective actions are foreseen in the criminal procedure law. Among these actions, we can mention the presence of the investigator and the investigating officer at the place of residence of the witness or informant (Article 216) and testifying through remote communication devices (Article 214). Although the Statute of the International Criminal Court does not provide for a specific and explicit provision regarding the requirement to investigate witnesses and informants without the presence of the accused, but from the phrase "appropriate measures" which is stated in general at the beginning of Article 68 of the Statute, it can be said that it is necessary in advance Taking appropriate support measures to maintain the safety and health of witnesses and informants.
2) The right to silence and the prohibition of coercion, reluctance and omissions in testimony: Article 38 of the Constitution prohibits forcing a person to testify, confess or swear and states that such testimony, confession and oath have no value and validity. In administrative investigations, in case of silence of witnesses and informants, the investigating authority is obliged to respect their right to remain silent and does not have the right to compel them to testify.
3) The right to refuse to sign the investigation sheet: The right of the witness to refuse to sign the witness statement or not to include his identity information is one of the certain rights known to witnesses and informants, and in Article 212 of the Criminal Procedure Law, this right is given to witnesses and informants and pointed out that they have the right not to sign or put fingerprints on what they have testified. The right of witnesses to refrain from signing the witness statement or not to include their identity details is also recognized in Article 22 of the Executive Regulations of the Law on the Establishment of the General Inspection Organization of the Country (2019). However, the review of the statute and procedure and evidence of the International Criminal Court shows that there is no explicit content in this regard. Of course, in Articles 68 and 69 of the Statute and in Articles 68 and 67 of the Rules of Procedure and Evidence, the International Criminal Court has provided all necessary arrangements for testifying in different ways so that no harm, danger or threat occurs to him.
4) The right to keep the identity and secrets of witnesses secret: One of the necessary actions to hide the identity of witnesses in order to ensure their physical safety is to try to keep the identity information of witnesses safe from the reach of others during the proceedings. For this purpose, measures such as using pseudonyms, changing identity or not including identity information in the file or preventing people from accessing the file can be used. Article 214 of the Criminal Procedure Law mentions the non-disclosure of information related to the identity, family details and residence or activity of a witness or informant, which is one of the innovations of the new Criminal Procedure Law regarding the rights of witnesses.
5) The right to object to taking an oath: Article 323 of the Criminal Procedure Law regarding swearing a witness before testifying states that the witness must take an oath before testifying. In the first paragraph of Article 69 of the Statute of the International Criminal Court, it is clearly stated that "before testifying, every witness must take an oath according to the procedure and evidence regarding the authenticity of his testimony". Also, paragraph one of Article 66 of the Code of Procedure and Evidence stipulates that every witness must take an official commitment to tell the truth before testifying. Therefore, the duty of testifying in some domestic criminal justice systems as well as in the International Criminal Court has been proven superior and preferred over basic individual and social rights.
According to the above mentioned cases, it can be concluded that the authorities in charge of administrative investigations and institutions in charge of administrative inspection are obliged to interpret the protection laws of witnesses and informants, including the provisions of the Criminal Procedure Law, in relation to witnesses and informants and other Citizens who participate in providing information in the administrative investigation process. In this regard, it is suggested that, in the first step, the Islamic Council and in the next step, the competent authorities to establish regulations by modeling the protective actions and guarantees provided in the Criminal Procedure Law as well as the Statute of the International Criminal Court, the legal and binding framework for compliance Provide these rights in the process of investigations and administrative inspections for witnesses and informants and other citizens who participate in administrative investigations.
Refrences:
1) Farsi
A)Books
2.Latin Source
