Fair Criminal Proceedings in the Light of the Role of the Prosecutor (With an attitude to International Documents and Western legal systems)

Document Type : Academicm and Research

Author

Associate Professor, Department of Law, Faculty of Humanities, Bu-Ali Sina University, Hamadan, Iran,

Abstract

A fair trial, at a macro level, is closely related to the structure of the criminal justice system and the manner in which its affiliated institutions operate. The separation and precise definition of the duties and powers of prosecution, investigation, and trial authorities at various stages of the criminal process—along with clear boundaries between them—can help establish a fair trial system. The combination of multiple judicial roles in a single judge—such that the judge interrogates the accused extensively and subsequently rules on the charges—violates the principle of impartiality. This principle is emphasized in international documents such as the European Convention on Human Rights (1950), the International Covenant on Civil and Political Rights (1966), and the Bangalore Principles of Judicial Conduct (2002), as well as in the jurisprudence of the European Court of Human Rights. Therefore, the existence of summary courts that assign multiple tasks (prosecution, investigation, trial, and sentencing) to one judge poses a challenge to fair proceedings. In this context, the challenges include: the appointment-based nature of the prosecutor’s position, the lack of accountability to elected institutions, the possession of extensive and unchecked powers, the dual authority to investigate and prosecute, and the lack of enforceable mechanisms to ensure the prosecutor’s presence at trial sessions. These conditions often result in the judge assuming the role of prosecutor, undermining the adversarial nature of criminal proceedings. The solution lies in reducing the prosecutor’s powers and increasing their accountability through supervisory institutions, such as the "Pre-Trial Chamber" envisioned in the Statute of the International Criminal Court.
 

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