Journal of Research and Development in Comparative Law

Journal of Research and Development in Comparative Law

A Strategy for Dealing with the Conflict between the Right to Present Evidence in Criminal Litigation and the Necessity of Protecting Privacy

Document Type : scientific research paper

Authors
Adnan Qasem 1
Mohammad Jafar Habibzadeh 2
Seyed Doraid Mousavi Mojab 3
1 Ph.D. student in Criminal law and Criminology, Faculty of Law, Tarbiat Modares University, Tehran, Iran
2 Professor Professor in Criminal Law and Criminology, Faculty of Law, Tarbiat Modares University, Tehran, Iran
3 Associate Professor, Department of Criminal Law and Criminology, Faculty of Law, Tarbiat Modares University, Tehran, Iran
10.22034/law.2025.2055756.1629
Abstract
The current “difficult cases” in criminal law discussions, highlight the inadequacy of the legal rule in providing a correct and direct answer, especially in cases of conflict and competition of rights. In these cases, the legislator generally refrains from predicting a specific solution, and therefore the judge assumes the arduous task of finding the desired solution. The most common and most difficult cases in criminal proceedings are related to the acquisition of evidence by the parties to the lawsuit, including the accused and the victim, through the violation of the other party's privacy; because the principle of legitimacy of obtaining evidence in relation to private parties to a criminal lawsuit in French law and to some extent in Iranian law, does not cover such a situation, and the judge is faced with the issue of conflict between the right to present evidence and the right to the necessity of observing privacy.
In fact, the resolution of difficult cases by the judge faces criticisms and challenges such as weakening the principle of judicial security of citizens and violating the principle of legality of the proceedings. The findings of the present study, which was conducted with a descriptive-analytical method and with the tool of library collection, indicate that in French judicial precedent, in fact, illegitimate evidence obtained by private parties to a criminal lawsuit through the violation of the other party's privacy is admissible. Currently, the General Assembly of the French Supreme Court has recognized the right to present evidence, in order to balance the competing rights, subject to the necessity of obtaining evidence in order to benefit from the defense rights of the parties to the crime and to establish the proportionality of the violation with the intended purpose. On the other hand, in the practical procedure of Iranian courts, there is no explicit and clear approach in this regard, which has led to a divergence of opinions, and ultimately the resolution of this conflict has been left to the judge's knowledge and free assessment of the evidence, so that one of the conflicting rights is ignored without reference to the law. Undoubtedly, the strategies used in French and Iranian judicial law and precedent will not prevent the weakening of the principle of judicial security of citizens and the violation of the principle of legality of proceedings, nor do they provide a comprehensive strategy for overcoming the conflict between these two rights. Therefore, the strategy of harmonizing the decision made with the structure of the legal system, proposed by Ronald Dworkin, can guide the judge towards the ideal decision.
Keywords
Difficult Cases
Conflict of Rights
Right to Present Evidence
Illegitimate Evidence
Privacy
Proportionality
Harmonization
Subjects
  1. Abdel-Aal, A. N. (2012). Manifestations of Violation of Equality in Criminal Procedures - An Original, Analytical, and Comparative Study. 1st Edition. Cairo: National Center for Legal Publications. (in Arabic)
  2. Al-Qudsi, B. (2011). Criminal Procedures. Books One and Two. Damascus: Damascus University Publications. (in Arabic)
  3. Ambroise-Castérot. C. (2005). Research and administration of evidence in criminal proceedings: the quest for the Grail of Truth. Actualité Juridique Pénal. 8(7), 260-278. https://shs.hal.science/halshs-02224878 (in French)
  4. Amiri, M. (2024). The Conflict between the Prohibition of Prosecution and the Suspension of Prosecution: A Glance at the Criminal Procedure Law of Iran and France. Journal of Research and Development in Comparative Law, 6(20), 26-56. https://doi:10.22034/law.2023.2010810.1256 (In Persian)
  5. L. (2012). Return to the principle of loyalty of evidence. Actualité juridique Pénal. 1(6), 346-365. http://okina.univ-angers.fr/publications/ua12391 (in French)
  6. Ashouri, M. (2024). Criminal Procedure. (15th ed., Vol. 2). Samt Publications. (In Persian)
  7. Bergeaud, Aurélie (2007). “The Right to Proof”. [PhD Dissertation, University of Bordeaux 4]. (in French)
  8. Beroule, Marie (2018). “The loyalty of criminal evidence”. [Master’s thesis, University of Aix-Marseille]. (in French)
  9. Bolze, Pierre (2010). “The right to proof to the contrary in criminal proceedings”. [PhD Dissertation, University of Nancy 2]. (in French)
  10. Dalou, M. (2017). The Legal Value of Evidence Derived from Illegal Methods in Criminal Proof (A Comparative Study). [Master's Thesis. Aleppo. University of Aleppo]. (in Arabic)
  11. Fathi, M., & Rezaee, R. (2019). The Balance of the Principle of Freedom of Obtaining Evidence with the Exclusionary Rule of Invalidity of Obtained Evidence through Illegal Means from the Point of View of Islamic Jurisprudence, Iranian law and Law of the West (With Emphasis on USA and Germany). Comparative Studies on Islamic and Western Law, 6(2), 55–86. https://doi:10.22091/csiw.2019.4423.1576 (In Persian)
  12. Frydman, B., & Haarscher, G.(2000). Philosophie du droit. Paris. translated by Watfa, M. (2002). Beirut: The University Foundation for Studies, Publishing and Distribution. (in Arabic)
  13. S. (2013). Search: admissibility of illicit evidence from an individual. (Dalloz-Actualité, December 16, 2013). Accessed February 15, 2025, available on the site: https://www.dalloz-actualite.fr/flash/perquisition-recevabilite-de-preuve-illicite-emanant-d-un-particulier (in French)
  14. Ghamari, I., Varvaei, A., & Ghasemi, masood. (2020). Using Illegal Actions to Obtain Criminal Evidence. Quarterly Journal of Free Legal Research, 13(48), 319–334. https://www.noormags.ir/view/fa/articlepage/1870305 (In Persian)
  15. Ghrénassia. C. & Robin. B. (2020). Evidence, intelligence and the law. (Dalloz- Actualité, June 3, 2020). Accessed March 1, 2025, available at: https://www.dalloz-actualite.fr/node/preuve-renseignement-et-droit (in French)
  16. Haroun, N., & Baraza, W. (2021). The Individual’s Right to His Image: Between the Requirements of the Right to Privacy and the Necessities of Detecting Crimes. Annales de l’université d’Alger, 35(3), 310–328. https://asjp.cerist.dz/en/article/164079 (in Arabic)
  17. N. (2024). Perish the principle of loyalty rather than the right to proof! (Dalloz- Actualité, January 9, 2024). Accessed February 20, 2025, available on the site: https://www.dalloz-actualite.fr/flash/perisse-principe-de-loyaute-plutot-que-droit-preuve (in French)
  18. Irani Arbati, B. (2007). Collection of Criminal Advisory Opinions. (2nd ed., Vol. 10). Collection of Criminal Advisory Opinions. (In Persian)
  19. Khaleghi, A. (2023). Brief commentaries on: Code of criminal procedure. Tehran: The SD Institute of Law Research and Study & Study. (In Persian)
  20. Khaleghi, A. (2024). Criminal Procedure (Vol. 1). Tehran: The SD Institute of Law Research and Study & Study. (In Persian)
  21. Lasserre Capdeville. J. (2010). Evidence provided by private parties: confirmation of tolerance regarding the principle of loyalty. Actualité juridique Pénal. 2(6), 275-294. https://shs.hal.science/halshs-02224976 (in French)
  22. Marques Bento Pereira, Cédric (2023). “Criminal Seizures and Fundamental Rights”. [PhD Dissertation, Le Mans University]. (in French)
  23. Marzal Yetano, Antonio (2013). “The dynamics of the principle of proportionality: an essay in the context of freedoms of movement in European Union law”. [PhD Dissertation, University of Paris I Panthéon-Sorbonne]. (in French)
  24. Michta, Céline (2017). “The administration of evidence in French criminal law: example and judicial practice of the national gendarmerie”. [PhD Dissertation, University of Strasbourg]. (in French)
  25. Mohammadi, A., Moradi GHaleh, S., & Heydari, M. (2023). The Principles Governing the Study of Evidence in Iranian Criminal Law. Fares Law Research, 5(13). https://www.pzhfars.ir/article_160277_en.html?lang=en (In Persian)
  26. J. B. (2017). Fair play in criminal evidence. Actualité juridique Pénal, 436-439. https://amu.hal.science/hal-01787939 (in French)
  27. E. & Bergeaud. A. (2009). The Right to Evidence. RTDCiv Revue trimestrielle de droit civil. 5(3), 600-622. https://shs.hal.science/halshs-02248529 (in French)
  28. Qasem, A. (2025). The Challenges of Balancing the Criminal Lawsuit Parties’ Rights in Pretrial Stage and the Strategies for Getting out of them; Comparative Study in Iranian, Syrian and French Law. [PhD Dissertation, Tarbiat Modares University]. (In Persian)
  29. Sahneh Saraei, M. S. (2023). The Struggle Between Legalism and JusticeSeeking in the Lived Experience of Penal Judges in Iran. [PhD Dissertation, Tarbiat Modares University]. (In Persian)
  30. Sallabi, S. A., & Rawashdeh, S. H. (2021). The Exclusionary Rule in Criminal Procedures: An Analytical Study in the European Court of Human Rights Jurisprudence. International Review of Law, 9(2), 228–264. https://doi.org/10.29117/irl.2020.0111 (in Arabic)
  31. Sarour, A. F. (2016). The Mediator in Criminal Procedures. Books One and Two. 3nd ed. Cairo: Dar Al Nahda Al Arabiya. (in Arabic)
  32. Shahat, M. M. A.-. (2024). The Balance between Protecting the Right to Privacy and the Legitimacy of Digital Forensic Evidence. African Journal of Legal and Political Studies, 7(2), 103–131. https://asjp.cerist.dz/en/article/236871 (in Arabic)
  33. Shaker, S. M. (2013). Guarantees of the accused during the preliminary investigation and Initial Investigation phase. [Master's thesis. Faculty of Law. University of Batna]. (in Arabic)
  34. Tadayon, A. (2008). A Comparative Study of the Legality of Gathering Evidence through Recording Sound and Image. Islamic Jurisprudence and Law, 4(16), 113–127. https://hoquq.iict.ac.ir/article_22888_en.html (In Persian)
  35. Tadayon, A., & Bagherinejad, Z. (2011). Ensuring a fair trial in light of the principle of legitimacy in obtaining criminal evidence. Legal Research Quarterly, 14(53), 215–242. https://lawresearchmagazine.sbu.ac.ir/article_56246_en.html (In Persian)
  36. Takaloo, S. (2023). Analyzing the right to defense in courts in the legal systems of Iran and France with emphasis on the law facilitating the issuance of certain business licenses and its impact on the institution of legal representation. Journal of Research and Development in Comparative Law, 6(18), 59-39. https://doi:10.22034/law.2023.563409.1198 (In Persian)