Position of Citizenship Rights in Criminal Procedure Law Enacted on 2014

Citizenship rights is a legal term which has several defin itions in d iverse social and ideological schools; in some cultures its political and social aspects are emphasized more and terms such as nationality and voting right are mentioned and there is no theoretical agreement on it. But generally it can be said that citizenship rights are a collection of leg islations and laws intended to protect human personality and dignity in all judicial-political and social fields and a citizen enjoys citizenship rights through living in a special geographical region and by virtue of the relationship existing between he/she and the ruling government. Based on this approach citizenship rights branching out the basic laws of every country, lay a responsibility upon both the citizen and the government and are also entry into force and performance guaranteed such as observing privacy, environment protection and so on.

One of the social, polit ical and legal co mponents of modern state in contemporary world is the position, rights and privileges of citizens.Following social changes and political revolutions in the past two centuries and collapse of foundation of authoritarian regimes and appearance of novel concepts in political and legal literature, a new era emerged in the hu man history.Emergence of legislative assemblies, separation of governmental forces, independence of the judiciary, restriction of political power and appearance of basic laws as a general convention between political government and cit izens opened a new horizon in regulation and clarificat ion of mutual relations between government and cit izens and made the citizens' rights in basic laws of new governments to have a preferential position Basically discourse of citizenship rights belongs to a new era of life, cognit ion and polit ical management and this literature does not have a long history in legal system of countries such as Iran.It can be said that these kinds of topics have entered Iran's legal system after the Constitutional Revolution.
In ancient Greece and Ro me the term cit izenship rights was used but the meaning range of the concept was restricted and used to refer to a special class; for instance women o r slaves were not accepted as citizens1 .
According to the statements it can be said that the concept of cit izenship rights is a modern concept and it includes the individuals liv ing in a geographical territory of a government -country and in return of the responsibilit ies they take, the government recognizes their rights and freedoms 2 .
In regard o f the foundations of cit izenship rights four separate styles can be counted to exp lain them as following 3 : A) Classic tradition (freedom-oriented style): this tradition emphasizes on the individual's position as basic element of society; in other words it focuses on individualis m.This classical tradit ion is considered as the first generation of cit izenship rights and emphasizes on "right-freedo ms".It also focuses on privative dimension of freedoms and takes into consideration the non-intervention of government.Decla ration of Hu man Rights and Citizenship of 1789 of France is an examp le of classic tradit ion and first generation of cit izenship rights 4 .B) Second tradition (republican style): this style asks the government to take a number of the measures in order to guarantee rights.In other words this group of rights cannot be achieved without interventionist or demonstrative measures of governments.Preface of 1946 Constitution of France states citizenship rights in republican style in wh ich human dignity, having the right of a qualified life, a job, political asylu m and so on are identified 5 .C) Third trad ition (social-cu ltural style): this style was founded by Hiter and Tirner; their approach aimed to criticize the previous two styles.They believed the first style was individualist and the second style was highly community oriented.This means that in the first style we are faced with indulgence of individual rights and freedoms wh ile in the second style the individual is empty of human dignity.As Degger states in combinational traditions such as republican liberalis m trad ition, the liberalis m should not be interpreted as egoism.Th is tradition tries to co mbine the three elements of indiv idual independence, collectiv ist virtue and rights 6 .
In regard of classificat ion and instances of citizenship rights various ideas are given in works of lawyers 7 .But taking into consideration that our discussion is about investigating citizenship rights in Supreme Court Vote, therefore the follo wing classification is chosen: 1-civil and polit ical rights: this class includes cases such as freedom of thought, freedom of relig ion, equality o f citizens (regard less of ethnical identities, gender, colo r, race and language), inviolab ility of prestige, life, housing and job of individuals, prohibition of inquiry of beliefs, freedom of mass media, protection of indiv iduals' privacy, freedo m o f political co mmunities and assemblies and protection of minorities' rights.2-Economic, social and cultural freedoms and rights: freedom to choose job, to have a desired life, social security, free and qualified education, the right to have a house suitable with every individual's requirements, food, clothing and health center.These are all part of demanded rights which are closer to the second tradition.3-legalrights: legal rights include the rights to be recognized for the citizens in a fair and just trial and the right of petition is its primary basis.In this class cases such as the following ones are recognized: the right to access a fair court, impartiality of the judiciary, inclusion of right to defend for both lit igants (such as having a lawyer), trial in open court, logical and fair respite.
In regard of resources of citizenship rights and a number of impo rtant resources of assuring citizenship rights the following descriptions are given:

1) Constitution
In Iran the Constitution as the foundation of country's legal system is considered the major source and basis of citizenship rights.Various principles of this right guarantee nation rights aga inst government and also assure citizenship rights.From among the principles monitoring citizenship rights the following cases can be mentioned8 : A) Social-political rights of cit izens: the sixth paragraph of Art icle III of the Constitution as "elimination of any type of tyranny and monopoly" and paragraph seven of this Article as "providing political and social freedo ms" and attempt of the state to utilize all facilities for "public part icipation to determine their cultural, economic and political fate" as impo rtant responsibilit ies of the state and government, are among the cases that the legislator has portrayed social, political and legal foundations of people; B)economic rights and social welfare: the right to choose a job and freedom in choosing it (A rticle 28), to have a suitable house (Article 31), immun ity of job and house of individuals against violation (Article 22), respect for private ownership (Article 47), to have social security (A rticle 29) are a number of cases the legislator has considered as economic rights and social welfare.C) Cu ltural rights: an examp le of cultural rights stated in the Constitution is the right 4 Gorji Azandariani, Ali Akbar, In Attempt of Fundamental Rights, ibid, p.98 5 Ibid, pp.98-99 6 Ibid, pp.99-100 7 For example Dr. Bijan Abbasi in his book titled "Basics of Fundamental Rights" has classified freedoms and rights into four c lasses as following: rights of the first generation including civil and political rights; rights of the second generation which are named economic, social and cultural rights; rights of the third generation or correlation rights and finally rights of the fourth generation including bioethics and so on.(Abbasi, Bijan, Basics of Fundamental Rights, Tehran, Jangal Javdaneh House of Publication, Second Edition, 2010, Pp.263 -264.On the other hand the late Dr.Gazi in Obligations of Fundamental Rights has classified the most important rights and freedoms into four classes (freedom of action, freedom of thought, freedom of assembly and economic and social freedoms).Gazi, Abol-Fazl, Obligations of Fundamental Rights, Mizan House of Publication, 24 th edition, 2005, Pp. 144-158.given for different minorities to use their languages in mass med ia and teach their literature at schools along with Farsi language.Moreover paragraph 3 of A rticle 3 of the Constitution emphasizes on the free education for everyone in all classes and also facilitation of higher education.D) Legal rights: the majo r purpose of citizens' legal rights is creating legal security for members of society.Paragraph 14 of Article 3 of Constitution exp lains that individuals' rights should be provided comp rehensively and fair legal security should be created and also everyone should be equal before the law.Article 4 states the codificatio n of all civil, criminal, financial, economic, cultural, military, political and other kinds of rules on the basis of Islamic standards; Article 20states the protection of all people including men and wo men by the law; Article 21states the creation of a qu alified court in order to p reserve family basis; Article 32 states the prohibition of arrest and detention without a warrant of law; Art icle 33states the prohibition of exile or co mpulsory inhabitancy except by warrant of law; Article 34 states the right to have an access to a qualified court and litigation for all people of the nation; Article 35 states the right to have an attorney; Article 37 states the presumption of innocence; Article 38 states the forbiddance of torture and force to extract confession, testimony or acquire informat ion; Article 39 states the forbiddance of affront to the dignity of the ones arrested, detained, imp risoned or exiled; Article 90 states the right to co mplaint the work of the Assembly, the Executive or the Judiciary; Article 165 states that the trials are to be held openly unless it is detrimental to public morality or discipline; Article 169 states that No act or omission may be regarded as a crime with retrospective effect on the basis of a law framed subsequently; Article 171 states that if the individual suffers any moral or material loss as the result of a default or error of the judge or govern ment, the defaulting judge must stand surety for the reparation of that loss.
2) Fourth and Fifth Develop ment Plan Act 2-1 Fourth Develop ment Plan Act: the citizenship rights are stated in Article 100 and 130 of this Act as a duty to the government and Judiciary.Charter axes are as following: a) public education of obedience to the law and promotion cu lture of discipline and respecting law and cit izenship; b) providing freedo m and protecting votes of people and guaranteeing freedom of selecting and being selected; c) guid ing social-polit ical activit ies towards legitimate processes and supporting and guaranteeing security of legal co mmun ities and activities; d) providing the required freedo m and security for growth of social co mmunit ies in the field of protecting wo men and children's rights; e) pro moting unifying and respectful ideas in regard of social g roups and diverse ethnic group s in national cu lture; f) protecting indiv iduals' privacy and g) p ro moting feeling of social security among people in society.
2-2 Fifth Develop ment Plan Act: this Act is also considered by the legislator co mprehensively in form of legal rights as instances of citizenship rights.Following some parts of it are mentioned as required: The Article 211 of the Act states that: a) in order to reduce criminal acts and claims, to create legal police, to standardize guarantee of criminal performances and to replace guarantee of effective and updated non-criminal performances such as order, disciplinary, civ il, ad ministrative and restorative, the Judiciary is responsible to provide the needed legal bills at most until the end of the first year of plan so that it is g iven to the Assembly by the government; b) while executing overall po licies of the system in judicial affairs (paragraph 12), the financial, organizational and emp loyment requirements of the Judiciary ,accord ing to Articles 156,157 and 158 of Constitution, must be provided in such a way that annually 10 percent of the existing vacant posts enacted in the end of 2009 are co mpleted.
3) Iran's 20-year vision plan : in first paragraph of this document preservation of cit izenship rights and dignity is recognized as an accessible ideal.4) Act of respecting legitimate freedo ms and preserving citizenship rights: this Act considers that the rights and freedoms written in Iran 's Constitution are definite and therefore is about to protect them; the content of it is related to legal defense of Iranian citizens against trials and court officers.

Guarantees of Citizenshi p Rights in Preliminary Research and in Tri al Stage
At this part of discussion according to the law on criminal procedure enacted on 2013, the other instances such as forbiddance of torture, forb iddance of desecration, the right to silence, observing the princip le of equality and or the princip le of open trials are taken into consideration.
Article 90 of the law on criminal procedure enacted on 2013states that: "preliminary research is a set of legal measures taken by the interrogator or other judicial officers in order to preserve marks and signs and collect reasons of crime occurrence, detection, finding out and preventing the escape or hiding of the accused." One of the other innovations of the new Act is separating the role of prosecutor fro m the role of investigator; because according to Article 92 and its subsequent note doing the preliminary research of all crime is done by the investigator and in special conditions is done by court magistrate or by prosecutor and in some cases by assistant prosecutor.It should also be mentioned that the role of assistant prosecutor is still used for cases such as referring and presence in the court 9 .
But Article 265 of the law on criminal procedure enacted on 2013 states that: "if the act is considered a crime and there is sufficient evidence to assign crime to the accused, the investigator issues arrest warrant to the trial and….".Therefo re changing culpability warrant to arrest warrant is one of the other innovations of the new Act.The reason is that court is the reference for do ing research and until the time that a defin ite warrant is not issued for condemnation of an ind ividual it is not possible to announce his/her culpability or non-culpability; because a mistake taken in this field is contrary to the principle of presumption of the innocence.According to this principle all people are assumed to be innocent 10 .
A number of mistakes were co rrected in the new Act and the term "attorney" is repeated more than 80 t imes which is indicat ive of special attention of legislator to necessity of attorney's intervention in trial p rocess.In Article 190 of the law on criminal procedure enacted on 2013 intervention of att orney in preliminary research is predicted.In such way that the accused has the right to have an attorney from being under supervision until preliminary research is over 11 .a) Presumption of innocence and effects related to it : taking into consideration th e importance of presumption of innocence as one of the major instances of guaranteeing citizenship rights that must be considered in both stages, first the meaning, history and legal position of presumption of innocence are analy zed and then its effects ar e analyzed that can be found in instances such as right to the silence, immunity fro m any kind of threat and torture, having the right of last defense, silence of the condemned and also as another effect of presumpt ion of innocence is personal freedo m during preliminary research and the indiv idual's arrest is bound to exceptional cases with specific conditions due to unique and limited social interests. 12 this regard in the law on criminal procedure enacted on 2013 it is stated that:" the presumption is innocence.Any kind of measure that limits, deprives freedom and entry into another's privacy is not allowed except by warrant o f law with observation of provisions and under supervision of judicial officer; and in any case these measures should not be offensive to the individuals' dignity. 13ot committed or force him/her to lie against himself/herself 18 ; because "…..empathic questions or deception or compulsion of the accused are forbidden."And "……if the accused refuses giving answers….." only "…..his/her refusal is to be written on meeting report" 19 without being able to "fo rce the accused to confess culpability or witness against himself" 20 .
Regardless of the issue that in inquisitorial system silence of the accused is a license to get confession with torture 21 , but getting confession, informat ion, testimony and sworn must be done in a safe manner and with person's will.Therefore any confession, informat ion, testimony or sworn taken by force, torture and threat and even without having the feeling of any kind of stress, con tempt and threat 22 , whether it is taken undesirably and suddenly by a police officer or is a permanent procedure 23 , it lacks legal validity and the culpability on the basis of such a confession can be nullified 24 and courts are obliged not to take it into consideration.Forcing the accused to answer questions while being interrogated is a clear instance of suppressing defensive rights of the accused and is opposed to the principles and standards of a fair trial or a just war between government and the accused 25 ; the co mpulsion and force is done by physical or mental torture.Th is is while torture of the accused is strongly forbidden both in domestic law and in international and regional documents and criminal enfo rcement guarantee is predicted for it .Of course reaction of governments toward torture is not the same; the reason is that their standpoint in regard of torture and rough behavior is affected by the culture and tradition of their societies.Nevertheless, negating it is a general rule 26 .

Conclusion
According to the points investigated and analyzed in the present article it became clear that the concept of citizenship is considered as a position in an approach to civil society (normal or modern) accord ing to which it provides conditions of individual's enjoy ment of rights and power.
In fact function of concept of citizenship rights is development and expanse of regulations that organizes all activities, actions, desires and economic, political, social, cultural and legal needs of people and prevents being cruel and oppressing the citizens specifically in the field of criminal law which is called spoiling rights of the accused.
Fro m among the instances of citizenship rights in legal field cases such as presumption of innocence and right to have attorney in all phases of trial can be mentioned.Moreover under the important presumption of innocence other cases such as right to silence, exp lain ing the charge, prohibition of arb itrary detention, forb iddance of torture and threat can be investigated.On the other hand in regard of the right to have attorney besides focusing mostly on this right, other principles such as openness of trials can also be mentioned.
What is certain is that in the Criminal Procedure Law Enacted on 2014, although the legislator attemp ted to develop guarantees of citizenship rights (such as Article 48) but is Notes of the same Article and in other Articles such as 190, a number of exceptions of vague cases are expressed that paves the way to criticize this Law.Therefore it can be said that rights of the accused especially in preliminary research in cases such as right to silence has developed and on the other hand although in trial phase positive points can be seen and some developments are gained but in the fields such as political and security crimes, the legislator has been ignorance to the presence of Jury.