Criminal law and criminology
Siamak Jafarzadeh; Reza Nikkhah sarnaghi; Hamid Alizadeh
Abstract
The approach to incarceration is as old as history itself. However, as societies have developed, fundamental ambiguities have emerged in this approach. Consequently, following the knowledge of criminology, custodial sentences have been seen as inadequate in reducing crimes, preventing recidivism, and ...
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The approach to incarceration is as old as history itself. However, as societies have developed, fundamental ambiguities have emerged in this approach. Consequently, following the knowledge of criminology, custodial sentences have been seen as inadequate in reducing crimes, preventing recidivism, and addressing the growing number of individuals in the criminal population. These factors have given rise to the de-incarceration movement, which has gained strength in response to the disadvantages of imprisonment; mainly its effects after individuals are released from prison. Thus, the use of alternatives to imprisonment has been embraced in the Islamic Criminal Law approved in 2013, where its scope, types, and formal rules were outlined in the Criminal Procedure Law of the same year. Subsequently, sub-legislative measures were formulated and communicated to the judicial authorities to implement this punishment.Nevertheless, the success of the de-incarceration movement in reducing the number of incarcerated individuals and addressing issues such as the severity of punishment has been a significant obstacle to the release of prisoners. In response to this problem, the de-incarceration movement approved the law on reducing prison sentences in 2020. Since enacting such substantive laws can have a crucial impact on issues raised in criminal proceedings, the effect of their approval in the judicial process cannot be ignored.This article has been written descriptively to study the significant changes this law has brought to the preliminary investigation process. The effectiveness of this law in achieving criminal security orders for the accused, in line with the principle of proportionality and the principle of criminal law as the last and least resort, remains ambiguous. In this regard, the question arises as to whether the principle of criminal law as the last and least resort should be incorporated in obtaining the order of criminal security or not. Furthermore, considering the development of forgivable crimes, which indicates a move towards the privatization of criminal justice, the issue arises as follows: According to Article 106 of the Islamic Penal Code, in the case of forgivable crimes, the victim has the right to file a complaint within one year from the date of crime notification. Therefore, after one year, the victim's right will expire. Given the wide range of crimes categorized as forgivable crimes in the law on reducing the punishment of imprisonment, in a situation where the victim has not yet filed a complaint due to the crime being non-forgivable, the question arises as to whether the judge should issue a suspension of prosecution according to Article 11 of the Islamic Criminal Law or consider the plaintiff's acquired rights and allow the continuation of the prosecution process.Determining the jurisdiction of judicial authorities or institutes is another challenge this law presents. For instance, in cases of criminal damage, the property's value plays a role in determining the authorities' jurisdiction. This means that when the property damage is up to ten million Rials, according to Article 9 of the Conflict Resolution Counsel Act, it falls within the jurisdiction of the Council. If the damage exceeds ten million Rials but is less than twenty million Rials, it directly falls under the jurisdiction of the Criminal Court. If the damage is less than 100 million Rials, the prosecutor's office has the authority over the preliminary investigation. Therefore, the absence of an authority to accurately determine the extent of the damage causes delays in proceedings and creates uncertainty for the judicial authorities. To prevent divergent judicial opinions and adhere to the principle of the generality of criminal procedure, as specified in Article 2 of the Criminal Procedure Law, it seems necessary to issue unanimous opinions regarding the challenges above. This will end these judicial disputes and establish a unified procedure within the judicial authorities. Consequently, when approving substantive regulations, their effectiveness should be evaluated compared to formal regulations to prevent the division of judicial opinions.
Hadi Rostami; farhad mirzaei
Abstract
There are no fixed criteria for sentencing across all penal justice systems and they often vary as a result of social circumstances. Apart from having been rooted in its philosophical and ideological fundaments, punishment is a social event which is directly affected by industrial development and civilization ...
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There are no fixed criteria for sentencing across all penal justice systems and they often vary as a result of social circumstances. Apart from having been rooted in its philosophical and ideological fundaments, punishment is a social event which is directly affected by industrial development and civilization progress. An offense is a personal choice since it is normally a consequence of an individual’s reason whereas punishment is an act of collective wisdom following common reasoning of a group. Even though violence is still prevalent in crime in all societies, civilized humans are not allowed to openly apply violence in punishment and no one simply accepts to use it as harsh punishment. At present, employment of violence by the government as part of punishment is subject to such a lot of restrictions that governments do not possess their former freedom in punishment anymore. Demonstration of severity of punishment has gradually disappeared and now punishment systems have been transformed and rationalized due to modern civilization. Along with modernity, apparent demonstration of violence in the form of death carnivals has left the social scene and logic and modern rationality have set in throughout all aspects of human life, especially social reaction to crime.
