Theoretical and Historical Foundations of Guaranteeing the Right to an Attorney in International Criminal Procedure

Today, the right to a fair trial is one of the most fundamental implications of human rights at international level. Therefore, in order to observe justice and institutionalize human rights' standards, one of the essential requirements for a fair trial and respect for human rights is the "right to an attorney " in the criminal proceedings without which one of the fundamental human rights, namely, the right to a fair trial will not be realized. The purpose of the present study is to examine the historical foundations and background of the right to an attorney and, on the other hand, to examine the theoretical foundations and the reasons justifying this right in the process of criminal procedure using a descriptive-analytical method. The results of this research showed that the right to defense counsel was established after formation of an adversarial system. Moreover, two adversarial and inquisitorial systems have had a significant impact on the formation and development of the right to an attorney throughout the world. In addition, historical studies have shown that the guarantee of the right to an attorney is always the responsibility of government. Moreover, considering the said theoretical foundations in this study, it seems that the main basis for lawyer intervention in the criminal procedure process is guaranteeing the fair trial. Therefore, two approaches including; justice based and benefit based models are proposed in this regard. Finally, we could say that there is a close and interactive relationship between due process, the right to fair trial and the right to an attorney. Therefore, each of these rights could be considered a prerequisite for the other.