Defendant's Defense Rights: The Right to Remain Silent and Refraining from Self-recrimination in Iran and the People's Republic of China’s Criminal Justice System

One of the foremost defense rights of the accused enshrined in international documents and legal systems of most countries including Iran and the People's Republic of China is the right to remain silent and the right to refrain from self-recrimination in the face of interrogation by a legal body. And handing evidence of innocence is an example of a fair trial. According to Article 197 of Iran’s Criminal Procedure Law, the right to remain silent has been explicitly acknowledged but there is no legal provision for the right to self-incrimination, and this issue is subject to controversy on the part of lawyers at home. Nonetheless, according to Iranian and Chinese jurists, the observance of these two rights in criminal proceedings is open to discussion in terms of its executive dimensions and there are quite a number of differences between them. But with regard to Iranian lawyers' view about the purview of applying the right to silence, there are some concerns that should be considered; furthermore, some instances such as investigation and prosecution officials' lack of responsibility for proclaiming the defendant the right to silence, lack of recognizing the exclusionary rule of evidence and lack of requiring audio and video recording during the course of investigation and envisaging the arrangement of the mechanisms thereof have been less noticed by the legislator. In contrast, whereas the Chinese legislator explicitly pointed out the matters of the right to silence, the prohibition of self-incrimination under duress and the exclusionary rule of evidence, the observance of the rights has been subject to conflict in Chinese criminal proceedings in respect of law enforcement; that is, there are a myriad of notions among them.Hence, this article attempts to investigate in a descriptive and analytical way the obstacles and challenges in implementing these rights in Iran and China’s penal systems.