Abbas Mohammad Khani
Abstract
It is doubtless that murder is normally committed by an act. In the Iranian criminal law literature, criminal act with regard to murder has been divided into physical and non-physical act without precise definition and determination of criteria of these two acts. As a consequence, they are not clearly ...
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It is doubtless that murder is normally committed by an act. In the Iranian criminal law literature, criminal act with regard to murder has been divided into physical and non-physical act without precise definition and determination of criteria of these two acts. As a consequence, they are not clearly distinguished from each other. Hence, there are some criminal conducts that do not fall within these divisions. The reason is the considering hitting or non-hitting on victim's body and the type of injury as a measure of the distinction of these two acts. In the present essay, after defining and distinguishing the physical and non-physical acts, attempt has been made to classify the acts into physical and non-physical on the basis of the nature of the committed act, regardless of the result. In addition, hitting or non-hitting of the act on victim's body and physical and moral damage has been taken into account only in classifying the physical act.
Seyede saedeh Hosseini; Seyed Mahdi Seyyedzadeh sani; Abdolreza Javanjafari
Abstract
Helping at-risk people is one of the most important ethical norms that has always been emphasized as a vital factor in maintaining and strengthening solidarity in societies. But since the mere existence of a moral duty cannot be a requirement for individuals to engage in philanthropic behavior, it is ...
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Helping at-risk people is one of the most important ethical norms that has always been emphasized as a vital factor in maintaining and strengthening solidarity in societies. But since the mere existence of a moral duty cannot be a requirement for individuals to engage in philanthropic behavior, it is necessary for criminal policymakers to develop ethical behaviors in order to develop this culture and encourage individuals to adopt socially acceptable behaviors To this end the legislature of the Islamic Republic of Iran and many European countries have criminalized the non-intervention of people in emergency situations and have thus emphasized this moral value. However, in the American legal system with the exception of a few states, due to the overriding of individualistic values over ethical values, no statutory general duty to assist at-risk individuals has been foreseen, And criminal policymakers can only punish the special observer if there is a specific duty to prove the causal relationship between the abandonment of the act and the criminal outcome.
Rahman peyvast; Mahdi Sheidaeian; Mohammad Salehy
Abstract
In this article, we tried to explain the criminal status of the prosecutor by using. documents and library methods and in a descriptive analytical way, using international ·documents and requirements, and the existing gaps and defects should be announced a long with the suggested solutions.The ...
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In this article, we tried to explain the criminal status of the prosecutor by using. documents and library methods and in a descriptive analytical way, using international ·documents and requirements, and the existing gaps and defects should be announced a long with the suggested solutions.The findings of the current research indicate. that according to the Principles of fair proceeding, the role of the prosecutor is very. important, however, despite the huge. change in the new criminal policy regarding the position of the prosecutor's office and ・the reduction of prosecutors Powers in order to protect the defendant's defense rights and human rights standards, our legislator hasremained far away from this development,And in many cases, it has violated the Priniciple of reasoning of the judicial authorities and in some cases It has placed the investigator in the judgment of the Prosecutor's officer.Therefore, the Weakness of its enforcement grounds, which will Pess result in the abandonment of the ruling contained in some legal articles, is inevitable.
Criminal law and criminology
Fereydoun Hosseini Nejad Braguri; Mohammad Reza Nazarinejad; Mojtaba Janipour
Abstract
The daily fine is one of the new alternatives to imprisonment stipulated in the Islamic Penal Code 92, the amount of which is determined by the court according to the severity and importance of the crime on the one hand and the amount of daily income of the offender on the other. Anticipating daily fines ...
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The daily fine is one of the new alternatives to imprisonment stipulated in the Islamic Penal Code 92, the amount of which is determined by the court according to the severity and importance of the crime on the one hand and the amount of daily income of the offender on the other. Anticipating daily fines and considering the convicted person's financial situation is a new step towards individualizing punishments. Although this system has been criticized, it is one of the positive aspects of today's criminal policy. However, the more effective and practical implementation of this system depends to a large extent on the actual income of the convicts. For this alternative to work well, the courts must have the right way to measure the income of convicts. On the other hand, due to the increase in the workload of the courts due to the review of the financial situation of the convicts, along with the consideration of the criminal case and the delay of the trial, most judges are not interested in it. Therefore, in order to properly use the capacity of this alternative and make it more efficient, it is necessary for the legislator to provide the judge with a specific mechanism for identifying the income of convicts and to determine the duties of executive bodies that have any knowledge of income and rights of convicts. The need to be obliged to cooperate. However, the research findings indicate that this alternative is applicable first to people who have the minimum income and financial ability to pay a fine. Therefore, for the disabled and without a specific income, another suitable alternative must be determined. Second, if the amount of the fine is determined in proportion to the income of individuals, due to the unfavorable economic situation, most of the convicts can be successful.
Zeinab Bagherinejad; Rajab goldoust Jouibari
Volume 2, Issue 5 , February 2014, , Pages 73-92
Abstract
bstractOne of the fundamental features of law is having of sanction. If law abidingsee themselves freedom and without punishment in performance or rules oflaw, how one can accomplish aim of law that is regulation of personalrelationships and establishment of discipline in society. so whenever rightsof ...
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bstractOne of the fundamental features of law is having of sanction. If law abidingsee themselves freedom and without punishment in performance or rules oflaw, how one can accomplish aim of law that is regulation of personalrelationships and establishment of discipline in society. so whenever rightsof people be molested, reaction against violator should be provided andensured. Procedural rules and principles as partial of rules of law withtheir special sanctions also have been protected by legislator and judicialprecedent. Some of these sections has personal aspect and includes widerange of administrative – disciplinary or criminal and civil measures. Thiscategory of sanctions unlike guarantees related to procedural process canbe made against officials and authorities involved in criminal proceduralprocess that with their performance cause procedural fundamentalprinciples are violated.
Gholam Hussein Elham; Rasul Abed
Volume 2, Issue 7 , July 2014, , Pages 73-102
Abstract
This paper tries to examine the foundations of right to bear arms in USAlegal system. This right is the most ancient right which has been a subject forphilosophical arguments of Aristotle and Plato. Some believe that the rightto bear arms is a fundamental and constitutional right of the citizens, but ...
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This paper tries to examine the foundations of right to bear arms in USAlegal system. This right is the most ancient right which has been a subject forphilosophical arguments of Aristotle and Plato. Some believe that the rightto bear arms is a fundamental and constitutional right of the citizens, but theopponents argue that it is inimical to an oligarchic regime. According to thefirst view, the criminal law supports the holders to bear arm and punisheseveryone who violates this right. However, according the second, bearingarms by violation of the law has been criminalized and offenders should beconvicted. Among these approaches, the common law system was affected bythe proponent of right to bear arms, therefore, this right has been recognizedfor the people. Under this circumstance, the founders of United StatesConstitution allocated the second amendment to this right. Yet, theConstitution of Iran did not have any article about right to bear arm so thatthe legislator could be able how to regulate this part. The first chapter ofthis paper examines the primary philosophical arguments on right to beararms and the second chapter is about the rules of common law regardingthis right. Finally, the third chapter examines the effect of philosophicalapproaches and common law rules on the evolution of right to bear arms inthe United State legal system and the different criminal policy of Iran.
behroz gholizadeh
Abstract
According to art.492 IPC, the crime leads to Qisas or Diya when there is a causal relationship between committed behavior and resulted crime. One of the factors which cuts the chain of causation in the murder is the victim's behavior. The victim can diminish causal relation by "deliberate, consciously ...
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According to art.492 IPC, the crime leads to Qisas or Diya when there is a causal relationship between committed behavior and resulted crime. One of the factors which cuts the chain of causation in the murder is the victim's behavior. The victim can diminish causal relation by "deliberate, consciously or unconsciously" behavior which may be in some cases by omission. However, in some cases, perpetrator's intent is so extensive that the victim's behavior will have no effect on the assignment of crime to him. There are some questions here; what is the victim's behavior effect on the causal relation in murder? What is the effect of perpetrator's intent in the assignment of murder?In this paper, by using descriptive-analytical approach alongside studying the causality relationship between perpetrator behavior and the result of that behavior in murder, the effects of victims behavior on occurrence murder will be studied, and the related questions will be answered by resorting to legal principles and jurisprudence.
Hassan Moradi
Abstract
در کنار تأسیسات حقوقی همچون معافیتهای «قانونی» و «قضایی» ، نهاد «تبدیل مجازات» قرار دارد. تبدیل مجازات در مفهوم اعم اقدامی در راستای فردی کردن مجازات، ...
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در کنار تأسیسات حقوقی همچون معافیتهای «قانونی» و «قضایی» ، نهاد «تبدیل مجازات» قرار دارد. تبدیل مجازات در مفهوم اعم اقدامی در راستای فردی کردن مجازات، جلوگیری از تضییع حقوق مجنی علیه یا اولیای دم، جلوگیری از وهن دین، تحدید استفاده از زندان و نیز تحقق عدالت قضایی و تعذیبی عادلانه است. در حال حاضر تبدیل مجازات در حوزه مجازاتهای حدود، قصاص و تعزیرات جاری است. لیکن پرسش اساسی این است که آیا جهات تبدیل قصاص عیناً همان است که در تعزیرات یا حدود مقرر است یا هر یک از اینها تابع احکام و ضوابط خاص خود میباشند؟ تبدیل مجازات های تعزیری به دو نوع «قانونی» و «قضایی» تقسیم می شود. تبدیل قانونی به شدت تابع شرایط مقرر در قانون است و تبدیل قضایی اصولاً تابع شرایط تخفیف مجازات میباشد و تشخیص آن به قاضی محکمه محول شده است. اما تبدیل حد همچون تبدیل قانونی تابع شرایط مقرر در قانون و منوط به موافقت مقام رهبری یا رییس قوه قضاییه میباشد. در مجازات های قصاصی دو نوع تبدیل «اجباری» یا «قانونی» و «شخصی» یا «اختیاری» قابل اجراست. هنگامی که قصاص شرعاً جایز یا ممکن نباشد، اجباراً به دیۀ مقدّر تبدیل میگردد
seyyed mohammad javad sadati
Abstract
AbstractTechnical studies of criminal law rarely discuss the social aspects of punishment. Punishment has a deep relation with other social institutions such as power, culture and punishment is part of the social structure. As a result, this phenomenon has close relation with other parts of social ...
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AbstractTechnical studies of criminal law rarely discuss the social aspects of punishment. Punishment has a deep relation with other social institutions such as power, culture and punishment is part of the social structure. As a result, this phenomenon has close relation with other parts of social structure. Torture, as one shape of penal reaction, is no exception to this pervasive rule. Birth and continuation of these ritual punishments have complex and deep relations with other social phenomena. However, technical studies of criminal law are reluctant to examine the hidden sociological aspects of torture. The Sociology of punishment tries to show thesehidden relations. Sociological study shows that torture has a deep relation with the identity of the collective conscious. In this research, with the sociological method, I try to analyze the process of birth and continuation of rituals of torture in ancient Iran.Keywords: Collective unconscious, Meaning-Symbol relations, Ritual life, Rituals of torture, Theology of punishment
mohammad faraji; Behzad Razavifard
Abstract
It is possible to consider regional criminal law as the third domain of international criminal law beside two other domains including crimes with an exterior element and international crimes. European Union criminal law is the best example of a regional criminal law under which some organizations and ...
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It is possible to consider regional criminal law as the third domain of international criminal law beside two other domains including crimes with an exterior element and international crimes. European Union criminal law is the best example of a regional criminal law under which some organizations and regulations are provided in the Union level. Doing so, pursuant to the creation of a criminal jurisdiction in a regional level, different institutional and normative mechanisms are realized in order to prevent and suppress the crimes. This article is to explain European arrest warrant, as one of those aforementioned mechanisms, that based on mutual confidence and judicialization of the extradition procedure make simpler the surrender of accused or convicted persons than one related to extradition. To do so, concerned acts are analyzed in order to explain juridical nature and procedure of this warrant and also to make clear its differences with extradition. Consequently, execution of European arrest warrant instead of extradition, regarding to expansion of transnational criminality and simpler circulation of individuals amongst countries, can better realize criminal justice.
Abstract
The Right of arrest is one of the foremost authorities that has been awarded to authorities of criminal justice system in order to fight against crime effectively. Although attempts has been done to prevent from detention of innocent persons by requiring officers to use criteria such as reasonable suspicion ...
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The Right of arrest is one of the foremost authorities that has been awarded to authorities of criminal justice system in order to fight against crime effectively. Although attempts has been done to prevent from detention of innocent persons by requiring officers to use criteria such as reasonable suspicion before detention, but in some cases with according to the law at the beginning and continued detention, finally the verdict on the innocence of arrested defendants was issued. In this case the fundamental question arises as to whether the detainee can claim compensation for detention and losses during which incurred? Although the pros and cons raised, but arguments of proponents is stronger than opponents. In this regard, in recent decades under various criminal justice system including France (since 1970) and Iran (since 2014) the right of compensation from innocent arrested defendants have been accepted. This article tries to study this institution in Iran and France criminal justice system with a comparative approach.
Philosophy of criminal law
Zahra Abdolhosseinqomi; Firouz Mahmoudijanaki; Majid Ghourchibeygi
Abstract
abstractFocusing on power is one of methods to analyse modern punishment. The kind of inference of power makes different analysis’s methods and results. Michel Foucault was one of thinkers that have considered power as relation between forces; and he use of Nietzsche’s method of genealogy ...
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abstractFocusing on power is one of methods to analyse modern punishment. The kind of inference of power makes different analysis’s methods and results. Michel Foucault was one of thinkers that have considered power as relation between forces; and he use of Nietzsche’s method of genealogy for his analyse. Foucault believed that power is everywhere and have correlation relationship with knowledge, his analytic method about the complexity of power and modern disciplinary power and punishment is discourse of power and knowledge. Then, some questions had been mentioned by this method; from the concept of discourse to its usefulness in analysis modern punishment and its bounding or lasting at time. It will be tried in the current article that to answer the three mentioned questions with the analytical descriptive method. In result, it seems due to avoided of prevalent inferences of power, exaggeration in some of his genealogies and some of his unsaid, lead to Foucault' method be expired, but preventive look in the field of modern punishment and his implicit emphasis on such that, that is, punishment is something more than punishment, makes a way for his method to last.Key words: modern punishment, power, genealogy, discourse, knowledge, discipline.
Criminal law and criminology
Mehri Barzegar
Abstract
Introduction: Combating against Money Laundering and Financing of Terrorism requires access to financial information. Therefore, The Financial Intelligence Units (FIUs) as the center of receiving, analyzing and disseminating financial data have a key role in prediction of the patterns of these criminal ...
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Introduction: Combating against Money Laundering and Financing of Terrorism requires access to financial information. Therefore, The Financial Intelligence Units (FIUs) as the center of receiving, analyzing and disseminating financial data have a key role in prediction of the patterns of these criminal offences and thereof prevention before their integration in legitimate earnings. Establishment of the units were initially provided in the Article 7.1.B of the United Nations Convention against Organized Crime (the so-called Palermo Convention) and the Articles 41.1.B and 58 of United Nations Convention against Corruption (the so-called Mérida Convention) and then was elaborately provided in FATF recommendations. In Iran, the unit was established according to the repeated Article 7 of the Anti-Money Laundering Amendment Act enacted in 1397. The FIUs should be autonomous, independent and national, and comply with the principles of information security and confidentiality once disseminating them. Methodology: This research is accomplished via descriptive-analytical approach. Comparing the FIU in the domestic law and the World Back and FATF recommendation, it seeks to analyze the role of FIUS in predicting and preventing Money Laundering and Financing of Terrorism.Results and Discussion: The results indicate the significant role of the FUIS in predicting and preventing Money Laundering and Financing of Terrorism. In Prediction phase, after receiving information the unit conducts operational and strategical analyses on it (Interpretive Note to the Recommendation 29 of the FATF). The operational analysis is applies for prevention in micro-level whilst the strategical analysis is employed in macro-level in order to recognize the patterns and predict them. Without distinction between the two types of analyses, the Anti-Money Laundering Act has elaborated the task in the repeated Article 7-a. The requirement of issuing the National Deed of Risk Assessment by the unit is another step towards prediction of the two aforementioned crimes. The function of the unit is also considerable in preventing these crimes in different levels and types. At the first level, prevention is accomplished by drafting guidelines, which has been mentioned in the repeated Article 7.f and 7.g. The second level of prevention includes supervision on high-risk persons, regions and transactions. This task is conducted by the FIU as well. At the third level, the role of the unit manifests in cooperation with the judiciary and closer monitoring of the designated nationals. The role of the FIU can be perused in both situational and social prevention as well. In situational prevention, measures that seek to mitigate the risk or manage it, further actions on the Suspicious Transaction Reports (STRs), issuing blocking orders on property and so on are all instances of such preventive tools that the unit conducts either directly or indirectly. The reason behind the substantial role of the FIU in situational prevention lies behind its access to facilities of risk assessment. In social prevention, providing counsel to specific persons in the form of communication of guidelines (the repeated Article 7.e), provision of educational programs on detrimental consequences of these criminal offenses (the repeated Article 7.h) all are social preventive tools and suggest that the perspective the of legislator has been vaster to merely confine to situational preventive tools.Conclusions: AML/CFT policies require vast cooperation between countries and immense sharing of financial data. However, Iran confronts two challenges of joining Egmont Group and international transparency in reaching this goal. Interpretive Note to the Recommendation 29 of the FATF has bound countries to join Egmont Group. Nonetheless, Iran has not succeeded in joining Egmont yet and its collaboration with other countries on data dissemination are limited to bilateral agreements. Indeed, the challenge of disseminating international data on money laundering lies behind disseminating data on sanctions. That is, some transactions of Iran with other countries is carried out via indirect methods that might be considered suspicious transaction. Also, the challenge of disseminating data on financing of terrorism returns to the Articles 154, 14.16 and 11 of the Constitution of the IRI. However, collaboration might benefit all parties. The Traditional approach of Iran towards international data disseminating would largely limit the potential of using the novel methods of cooperation and data sharing in favor of Iran. Transparency in national and international arena consists the other challenge for Iran in dissemination of data. Therefore, provision of a general reservation such as non-dissemination of data related to sanctions would largely undermine transparency.Although Iran has been successful in the field of legislative policy in recent years and most of its provisions on FIUs are in accordance with the Palermo and Mérida Conventions and guidelines and recommendations of the World Bank and FATF, it is still considered as the highest risk country on Money Laundering and following the non-compliance with the FATF recommendations, is one of the two countries in the black-list. The influence of political affairs is surely undeniable. Yet the current interaction of Iran with the international society is more divergent than convergent. Non-compliance with the FATF recommendation, non-dissemination of data and opacity all aggravate such divergent and ultimately combating against Money Laundering and Financing of Terrorism would get more difficult, resulting in long-term harms on economics of Iran.
Criminal Sociology
Amir Khademi; seyyed mohammad javad Sadati; Abdolreza Javan jafari
Abstract
During the deliberations of the Islamic Consultative Assembly regarding the Bill of Hudud and Qisas and the possibility of handing over its approval to the Judicial Commission, Mr. Mohammad Fazel said: "Is it really necessary for us to send this bill to the Commission?" How many years will it be implemented ...
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During the deliberations of the Islamic Consultative Assembly regarding the Bill of Hudud and Qisas and the possibility of handing over its approval to the Judicial Commission, Mr. Mohammad Fazel said: "Is it really necessary for us to send this bill to the Commission?" How many years will it be implemented on a trial basis? There is also this Shariah doubt that God's decrees can be put to the test and see for how many years whether God's decree is applicable or not? Later, we will vote that God's decree is applicable and extend it or say that it is not applicable."About four decades later, at the opposite point of the aforementioned statements, during the negotiations of the Islamic Consultative Assembly for the approval of the law to reduce the punishment of imprisonment, on November 14, 2018, the 380th meeting; Mr. Haji Deligani said: "It seems that there was no opportunity to know how the opinions of experts, honorable judges, and sociologists regarding the effects of this resolution on crime issues in society can have an effect and cause it to decrease or increase. From that side, there was no opportunity to get the lawyers & jurists opinion."What said were two different images of the criminal discourse regarding crimes that existed several decades apart from each other. The first image, which uses the expression "God's commandments" regarding the law of "Hudud and Qisas and its regulations", reflects the sinfully discourse. Sinfully discourse presents a holy image of crime by making a deep connection between crime and sin and portrays crime as a conflict with God's will. On the other hand, the second image reveals the weakening of the sinfully discourse and a significant trend towards the technical discourse regarding the crime. In the technical discourse, the sacred and meta-experiential image of crime becomes a material image, during which delinquency is considered as a behavior in violation of the existing social order and a symbol of disrespect for society's values. The criminalization process takes place in the technical discourse with an emphasis on scientific foundations. The second image, which deals with criminological issues and reducing or increasing crime, is a symbol of technical discourse.During this transformation, the readings of punishment also changed significantly. In the sinfully discourse, punishment was considered as a reaction for the restoration of the divine will. But in the technical discourse, punishment is portrayed as a bureaucratic response to the delinquent behavior of the criminal. The transition to technical discourse caused Sharia punishments in the law, such as Hudud, to be significantly transformed and replaced by other punishments in some cases. from now on, committing many crimes in the eyes of the society, violation of sacred values and punishment is not considered a symbol of God's will and therefore the social acceptability of Sharia punishments such as "stoning" has decreased significantly.Also, in the cases of committing a crime, the criminal is no longer recognized as a violator of divine values, so that a strict criminal policy can be used in his case. Rather, in today's era, a criminal is often recognized as a person who should be subjected to corrective and rehabilitative measures. How to decipher the transition from the sinfully discourse to the technical discourse regarding the crime? How can we evaluate the reproduction of sinfully discourse in the first decade of the revolution and its transition to technical discourse in the next four decades? How can we analyze the association of the society with the sinfully discourse in the first decade of the Islamic revolution and its turning away from the said discourse after a few decades?To answer the above questions, we can discuss and investigate from different aspects. Among them, relying on philosophical and technical theories in the field of criminal law, he found the reason for the significant transition from the sinfully discourse to the technical discourse. For example, in the technical field of criminal law, by emphasizing new criminological findings, it can be revealed that the thinking of legal elites, especially in the field of criminological theories, has a significant impact on the evolution of laws and criminal discourse. in such a way that, the elites' depiction of the criminal as a patient deserving of treatment and their emphasis on the need to apply effective punishments in his reformation caused a significant tendency towards technical discourse. Also, by taking the path of philosophical studies, the effect of deterrence-based theories can be considered effective in the aforementioned transition, or it can be done by revealing the role of scientific foundations and reflecting it in law. Despite the valuableness of the aforementioned analyses, the upcoming research will examine the answers to the above questions with an emphasis on the perception of "cognitive society" from two perspectives of power and society. In this regard, from the perspective of power in the framework of sociological perceptions, we will analyze the phenomenon of sinfully discourse and the transition from it to technical discourse from the perspective of transformation in "social control methods" and the theory of "ideology and the state's ideological apparatuses". did Also, from the perspective of the society in the perceptive framework of the sociology of culture, we explain the phenomenon of the mentioned discourse and the significant trend towards the technical discourse by relying on the changes in the "ritual and social dimension of religion".Thus, in the first step, this research will explain the reason for the reproduction of the sinfully discourse regarding crimes. In this case, it becomes clear that from the point of view of power, the effort to promote the cultural system considered by the religious traditionalist power and the beginning of the process of de-bureaucracy in the first decade of the revolution caused the appearance of sinfully discourse regarding crimes. From the society's point of view, the prominent role of religion in the social life made the sinfully discourse towards crimes to be evident. In the next step, the bureaucratization of power and the reduction of the social dimension of religious values caused a significant trend towards technical discourse.Finally, it should be pointed out that dealing with the issue of the transition from the sinfully discourse to the technical discourse regarding crimes from a sociological point of view, never means ignoring other effective factors in the transition of the said discourse, such as the thinking of legal elites, reflection Scientific bases in the laws or the impact of international documents are not binding
Behzad Rzavifard; Marzyeh Dirbaz
Volume 1, Issue 3 , July 2013, , Pages 99-117
Abstract
The International Criminal Court (ICC), having the jurisdiction over themost serious crimes of concern to the international community, is establishedto end the impunity for the perpetrators of these crimes. ICC provisions havetaken different supports for victims into account. The Rome Statute, the rulesof ...
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The International Criminal Court (ICC), having the jurisdiction over themost serious crimes of concern to the international community, is establishedto end the impunity for the perpetrators of these crimes. ICC provisions havetaken different supports for victims into account. The Rome Statute, the rulesof procedure and evidence, the regulations of the court, the staff regulations&the agreement on the privileges and the immunities of the internationalcriminal court are the documents that make clear the rights of victims in thejustice process. Rights such as participation in proceedings, benefit fromlegal representatives’ assistance, notification of criminal justice system, andsecurity are considered as legal protections. Victims’ rights, in ICCproceedings, will be explained& examined– in the light of ICC provisionsand with regard to available judicial procedure- in this study.
abbas moazzen; Majid ghoorchi Beygi
Abstract
Sentencing is the most important process in criminal law. On the other hand, the state can have more intervention and force to its citizens. Sentencing not only is the most controversial and sensitive area of criminal law but also is the vaguest area in criminal justice system. Sentencing is not as easy ...
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Sentencing is the most important process in criminal law. On the other hand, the state can have more intervention and force to its citizens. Sentencing not only is the most controversial and sensitive area of criminal law but also is the vaguest area in criminal justice system. Sentencing is not as easy as it appears. Each crime, each criminal, each criminal trial is completely different from another one. Sentencing is an important concern for those who seek the judicial reforms. Recently, in the most countries around the world, the sentencing practices became reformed and sentencing based on gender, race, ethnic, socio-economic statues disappeared to some extent. There are four important schemes of sentencing: definite sentencing, indefinite sentencing, presumptive sentencing, and mandatory sentencing. This article tries to explore these schemes and explain the characteristics of each scheme. This article has comparative approach to UK criminal justice system and Iran criminal justice system.
Abstract
Committing physical behavior is a prerequisite in realization of criminal liability in criminal law. So that nowadays the criminal thought is not a punishable crime in any legal systems of world. Therefore, the criminal responsibility will be created when a man passing by his criminal thought actually ...
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Committing physical behavior is a prerequisite in realization of criminal liability in criminal law. So that nowadays the criminal thought is not a punishable crime in any legal systems of world. Therefore, the criminal responsibility will be created when a man passing by his criminal thought actually do a behavior that the legislator has prohibited it. Nevertheless, it can not be inferred from this rule that committing a physical behavior is a sufficient condition for the realization of criminal liability. Although the former is essential for the later, but it is not enough and it is necessary that this behavior is done with a free will. Accordingly, when offender has no will in doing that behavior, no criminal liability will be fulfilled. This sentence will include simultaneously the strict liability crimes and the crimes needing a mental element. But the important point here should be regarded is detecting that whether the accused had committed the act voluntarily or not. In this article, we have tried ,with a philosophical analysis, to determine the necessary components of voluntary behavior in order to be recognized the involuntary one. It is important to distinguish involuntary behaviors just because it will make the offfender unpunished.
Hadi Rostami
Abstract
Obtaining of causation between act and result, in particular in case of a multiplicity of causes especially in the premise of multiplicity of factors and instruments is one of the most difficult issues in the criminal law and civil responsibility. When multiple people at different times (longitudinal) ...
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Obtaining of causation between act and result, in particular in case of a multiplicity of causes especially in the premise of multiplicity of factors and instruments is one of the most difficult issues in the criminal law and civil responsibility. When multiple people at different times (longitudinal) are involved in the felony and a relatively long period of time is created between the interveners' behavior and the result of it (such as murder), this subject appears as a serious problem and sometimes as an unsolvable dilemma. Penal code act of 1392 has also mostly attempted to provide solutions under certain conditions instead of offering a clear criterion. Accordingly, in the case of intervention of direct multiple individuals in the same time, the result is put into account all factors and otherwise, may be responsible for recent perpetrator or first or both. Also, in case of more than indirectly involved multiple factors simultaneously all equally are responsible and otherwise, Otherwise, on the condition that felony is unintentional, the person who is responsible to intervene earlier. In addition, the direct and indirect involvement in the community, without being presented certain criteria, factors that damage or crime attributed to him, is responsible.
Abbas Akhtari; hassanali moazenzadegan
Abstract
For many years, all the attention was focus on the rights of the accused in the criminal procedure. It was justified by the defendant being defenseless before the prosecutor's office. In the meantime, the role of the victim in the advancement of the preliminary investigation process was underestimated ...
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For many years, all the attention was focus on the rights of the accused in the criminal procedure. It was justified by the defendant being defenseless before the prosecutor's office. In the meantime, the role of the victim in the advancement of the preliminary investigation process was underestimated and he was passive. With victim-oriented approach, some of the criminal justice systems targeted his role. In the Criminal Procedure Code of Iran, victim's rights have undergone major changes in the Code of Criminal Procedure, approved in 2013, in accordance with human rights standards. At the head of these developments are the right to security and the right to maintain identity. Our studies have shown that the approach of the Criminal Procedure Code of Iran, in comparison with the former laws, has taken into account a participatory and active role for the victim in the context of preparatory research. The prediction of the innovative rights in the law provides for the further participation of the victim in order to declare, disclose, prosecute and investigate the crime; including the explicit and transparent support of victim's security against potential threats and the need to maintain his identity.
Abdol ali Tavlljohi; Marjall Berenji Ardcstani
Volume 1, Issue 2 , January 2013, , Pages 67-91
Abstract
There are two kinds of penal policies: justice oriented and the othersecurity / enemy oriented penal policy. However the limitation ofindividual responsibilities and not interfering in their private life arefundamental, in some late decades could be said security orientatedcriminal law fonned by more ...
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There are two kinds of penal policies: justice oriented and the othersecurity / enemy oriented penal policy. However the limitation ofindividual responsibilities and not interfering in their private life arefundamental, in some late decades could be said security orientatedcriminal law fonned by more govenmlental interfere and alsoexpansion of person responsibility albeit authority of security is their'excuse but its cost is human rights elimination and feeling of securityis not visible. It means this penal policy has not been successfulconsiderably.
abolhaan shakeri; hasan khan ahmadi
Abstract
After legislating for one century, jurisdiction regarding Iranian victims was established in Iranian Penal Act approved in 2013, as allocated in article 8 mainatining Iranian court is competent to investigate unconditionally offences committed aboard by foreigners against Iranians including crimes whose ...
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After legislating for one century, jurisdiction regarding Iranian victims was established in Iranian Penal Act approved in 2013, as allocated in article 8 mainatining Iranian court is competent to investigate unconditionally offences committed aboard by foreigners against Iranians including crimes whose punishments are Hodud, Qisas, and Diya. In this respect, Sharia-based Mansous (written in holy Quran and sacred sayings)Taaziraat on due observation note of article 115 must also be included in the abovementioned Act; yet, as to Mansousless Taazir crimes, jurisdictional authority of Iranian court depends on the reciprocal criminality and non-conviction in the country where the crime is occurred; Additionally, when the complaint is introduced, victim must maintain Iranian nationality until the proceeding is ended. Iranian Penal Act is applied on lapse of time and extension of time if the offender is persecuted by Iranian court and when the offender is found in or restored to the territory of Iran. It should be noted that extension of time is not started at the time of crime occurrence. If the crime committed abroad against Iranian nationals is occurred in high seas or lands without government, then Iranian court is competent for all crimes except Mansousless Taaziraat crimes.
Seyed Alireza Mirkamali; Ansiyeh Hoseini
Abdolali Tavajjohi; hossein mohammad kourepaz
Abstract
کشورها با به رسمیت شناختنِ حق دسترسی به وکیل در مرحلۀ پیشا دادرسی کوشیدهاند تا به این حق؛ به مثابۀ یکی از جلوههای بارزِ دادرسی عادلانه، عینیت بخشیده و جایگاه آن را ...
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کشورها با به رسمیت شناختنِ حق دسترسی به وکیل در مرحلۀ پیشا دادرسی کوشیدهاند تا به این حق؛ به مثابۀ یکی از جلوههای بارزِ دادرسی عادلانه، عینیت بخشیده و جایگاه آن را در فرایند دادرسی کیفری مستحکم سازند. اگرچه در حقوق ایران این حق تاکنون دستخوشِ تحولات فراوانی قرار گرفته و همواره قانونگذار در شناساییِ کاملِ آن، به دیدۀ تردید نگریسته است اما این حق در جرایم عادی به رسمیت شناخته شد. البته در اصلاحات 1394، محدودیتِ در نظر گرفته شده از این فراتر رفت و با نقضِ حق دسترسی به وکیلِ مستقل (تبصره ماده 48) در جرایم علیه امنیت داخلی و خارجی و نیز جرایم سازمانیافته، محدودیت بحثبرانگیزِ دیگری وارد سنت حقوقی- قضایی ایران شد. این نوشتار تلاش دارد تا به این پرسش پاسخ دهد که آیا سایر کشورها نیز ایجاد محدودیت در دسترسی به وکیل در جرایم امنیتی را ضروری میدانند و دوم؛ اینکه به فرض پذیرش آن، این محدودیتها کدامند. پژوهش پیشرو، در ارتباط با نقضِ این حق، «الگویی» از گونههای مختلف این محدودیتها را شناسایی نمود؛ محدودیت مطلق، محدودیت زمانی در دسترسی به وکیل، نقض حق محرمانگیِ رابطۀ وکیل- موکل و نیز عدم برخورداری از وکیل مستقل (وکلای ویژه) از جمله آنها میباشد.
Firouz Mahmudi janaki
Volume 3, Issue 9 , January 2015, , Pages 83-110
Abstract
Criminalization theory originally supports restriction of criminal law’s border. The question which has been risen is whether the construction of existing theories is about the interests and goals or rights? Examination of German doctrines “Legal Interests” which are goal-oriented and ...
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Criminalization theory originally supports restriction of criminal law’s border. The question which has been risen is whether the construction of existing theories is about the interests and goals or rights? Examination of German doctrines “Legal Interests” which are goal-oriented and the comparison of it with current theory in the English-American philosophy – i.e. harm principle that inherently is behavior-oriented – clearly shows that: although this principle provides that the only or the most pivotal criteria for the criminal intervention of state is to prevent from harming others, German doctrines justify such an intervention on the basis of goals and protectable legal interests; since such theory has been based on violation of “right”. Even though, during the course of evolution, the concept of “Gut” has been gradually replaced by violation of interest in the German theory, understanding the legal interest under the circumstance of contradiction and opposition is truly based on the concept and theory of right. On the other hand, although the harm principle is originally based on the concept of harm, its foundation on the “interest” – albeit in the context of utilitarianism– drew it close to the German doctrines. However, growth of German theory in the context of philosophy of “right” provided a considerable distinction from measurement of interests inspired by utilitarianism in harm principle.
Fazlollah Forughi; Keyvan Ghani; Mohammad Mirzai
Abstract
Changes in the nature and form of crime in this century have been caused
by the globalization and crimes, as consequence, gained the transnational
and international dimensions. The most important of these crimes is
terrorism which is often committed in an organized way and criminals take
also advantages ...
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Changes in the nature and form of crime in this century have been caused
by the globalization and crimes, as consequence, gained the transnational
and international dimensions. The most important of these crimes is
terrorism which is often committed in an organized way and criminals take
also advantages of modern technology; this made fighting against such
crime much more complex. The nuclear terrorism is the most dangerous
forms of terrorism, given the extent of the adverse effects on physical and
spiritual, especially in the late twentieth century in the wake of the collapse
of the Soviet Union. Given crime has called more attention due to the
possibility of stealing nuclear materials. That being so, measures to prevent
such crime shall be taken by national and international authority. The main
purpose of this research is to explain the preventive measures with regard to
international instruments to guide preventive strategies. Accordingly, the
findings suggest that situational prevention and CRM technology, could be
considered a one of the effective measures on the reduction and control of
nuclear terrorism which reduces the opportunity of the perpetration of
aforementioned crime. The implementation of such measures requires the
interaction and supervision of all entities nationally and internationally.
