Mohammad Ali Rajab
Abstract
Use of Bail is one of decisions allowed for judiciary authorities within Criminal Procedure particularly during the pre-trial investigations and forensic searches in order to assure the accessibility to and presence of the accused or defendant for trial. However, at the same time taking any kind of Bail ...
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Use of Bail is one of decisions allowed for judiciary authorities within Criminal Procedure particularly during the pre-trial investigations and forensic searches in order to assure the accessibility to and presence of the accused or defendant for trial. However, at the same time taking any kind of Bail or pre-trial detention actually limits the accused’s rights and liberties or even, deprives him thereof. Therefore, this will be a scene of the dual status of criminal procedure again: to protect the society and to guaranty the rights and prerogatives of the defendant-which makes the case a reasonable ground to survey this challenge again. There are principles and frames like legality or limitations on pre-trial searches and forensic investigations which are provided to ensure the respect for rights and liberties of citizens. Amongst all, the principle of proportionality for bails and pretrial detention must be construed as a resort to restrict the appliance of public authority in unnecessary cases. In other words, the public authority must be merely restricted to the cases it is necessary to achieve a legitimated good according to the principle of proportionality. Therefore, if there is a goal of ensuring the accessibility and presence of the defendant then it must be restricted to the minimum level of penal intervention of state as far as the goal is obtained. This article is to provide an analysis of principle of proportionality with respect to other principles of public law and then, having an inquiry over the judicial practices of legal systems - particularly jurisdictions of the European Court of Human Right (ECHR), we shall try to assay for legal grounds of the principle in Iranian legal system.
