Code of Criminal Procedure
Badie Fathi
Abstract
This article delves into the distinct roles and implications of indices in evidence law within civil, criminal, and administrative lawsuits. While Iranian myths and epics, such as the story of Siavash and the Prophet Joseph in the Quran, exemplify the use of presumptions and indices as evidence, there ...
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This article delves into the distinct roles and implications of indices in evidence law within civil, criminal, and administrative lawsuits. While Iranian myths and epics, such as the story of Siavash and the Prophet Joseph in the Quran, exemplify the use of presumptions and indices as evidence, there has been limited scholarly focus in Persian on the differences between these two concepts. This paper aims to analyze these concepts, clarify their respective functions, and explore their impact on legal proceedings. Despite the legislative tendency to conflate indices with presumptions, it is important to recognize that they hold different positions within the hierarchy of evidence.
Historically, presumptions and indices have served as evidence in judgments, suggesting their long-standing use in various legal systems. However, Persian literature lacks an in-depth analysis of how these concepts differ from traditional forms of evidence. This article seeks to fill that gap by exploring the terminologies involved and their specific applications in lawsuits. Although legislators often pair indices with presumptions, a distinction exists: indices do not carry the same weight as presumptions.
Literature Review
In Persian legal literature, numerous books on evidence law explain the probative value of presumptions. Dr. Nasser Katouzian, for example, has written articles on the subject in the Journal of Law and Political Science (Summer 2004, University of Tehran, pp. 125-154). However, there is little discussion of the distinction between presumptions and indices, nor an exploration of the probative value of indices.
Materials and Methods
This study adopts a descriptive-analytical approach and utilizes library research methods to examine the relevant data. The aim is to assess the differences between presumptions and indices, analyze their respective roles in legal proceedings, and discuss how these differences affect the application of evidence law in practice.
Results and Discussion
Today, judicial decisions—particularly in criminal procedures—often rely on indices. This widespread use of indices underscores the need for a deeper theoretical analysis of their function. While many assume that there is no meaningful difference between indices and presumptions, it becomes evident that these two concepts differ significantly within the law of evidence. Indices are ranked lower than presumptions in terms of their evidentiary value.
Although legal scholars have paid comparatively little attention to this distinction, indices have been extensively utilized in practice by judges and investigators. This practical usage warrants a more comprehensive theoretical understanding. This article aims to clarify the position of indices within evidence law, compare them with presumptions, define indices and their types, and explore their value at various stages of criminal, civil, and administrative proceedings.
ConclusionA presumption is generally comprised of two or more indices. Indices are ranked lower than presumptions in the hierarchy of evidence, and, like presumptions, they can be categorized into indices of facts and indices of law. Unlike presumptions—whether rebuttable or irrebuttable—indices can always be rebutted.
The identification and evaluation of both indices and presumptions depend heavily on the judge’s experience, intelligence, and expertise in the relevant field. To protect legitimate rights and freedoms, as well as uphold the presumption of innocence (a legal principle stating that every person should be considered innocent until proven guilty), it is advisable to avoid treating a single index as a presumption. Generally, a claim should not be proven with only one index but rather through a combination of two or more indices.
In some cases, such as when the law specifies that certain documents or business records must be provided as positive evidence, or in family law cases where a husband's refusal to take a drug test is used as evidence to support his wife's claims, indices may play a crucial role. In such scenarios, failure to provide the relevant document or an unreasonable justification for not taking the drug test can serve as indices that influence the court’s decision.
Indices function differently at various stages of legal proceedings. In criminal cases, indices can justify actions such as arraignment, arrest, and the issuance of search warrants. However, until an index rises to the level of a presumption and convinces the judge’s conscience, it cannot lead to a conviction.
In civil and administrative cases, indices that do not reach the level of a presumption may establish urgency in issuing provisional orders, suspending execution, or delaying the enforcement of a judgment. However, they cannot result in a final judgment convicting the defendant. It is important to note that legislators have occasionally misapplied indices and presumptions in legal statutes. Such errors can impact the fairness and clarity of legal proceedings, highlighting the need for a more refined understanding of these concepts within the legal system.
General and exclusive criminal law
Mohammad Hasan Hasani
Abstract
Rape and consensual sexual intercourse are governed by distinct situational and obligatory rulings. The distinction between these two is particularly significant when considering the divine and human rights aspects. Rape involves a violation of both divine and human rights, while obedient sexual intercourse ...
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Rape and consensual sexual intercourse are governed by distinct situational and obligatory rulings. The distinction between these two is particularly significant when considering the divine and human rights aspects. Rape involves a violation of both divine and human rights, while obedient sexual intercourse is primarily governed by divine principles. This fundamental difference necessitates a differential approach, focusing on protecting the victim in cases of rape. One of the legal challenges arising in this context is the classification of sexual intercourse with a promise of marriage, and the subsequent civil and criminal liabilities resulting from it. This issue has led to various jurisprudential viewpoints and judicial decisions.
Some of the key challenges related to this issue include: First, whether sexual intercourse with a promise of marriage should be recognized as adultery from a divine perspective when it involves the woman's consent, and as adultery from a human rights perspective when it occurs without the woman’s consent. In this case, the adulterer would be held responsible for paying the dowry (mahr al-mesl) and compensation for virginity (arsh al-bekareh) to the victimized woman. Second, whether repeated sexual intercourse with the promise of marriage would absolve the adulterer from the responsibility of paying the dowry and compensation for virginity, especially after the first instance of rape. Third, whether real non-consent is only attributed to minors and those who are insane. Fourth, whether ignorance of the nature and illegitimacy of adultery by adults can be considered as non-consent. Finally, whether there is a legal justification for imposing responsibility for moral damage compensation due to adultery with a promise of marriage.
This paper, employing a descriptive-analytical method and examining jurisprudential-legal theories and judicial procedures, argues that sexual intercourse with a promise of marriage can have different legal classifications depending on the perspective of the parties involved. The distinction between divine and human rights necessitates that, just as doubt about the divine aspect of rape may lead to exemption from the death penalty, ambiguity surrounding the victim’s consent in the human rights context obligates the rapist to pay conventional dowry (mahr al-mesl) and virginity compensation (arsh al-bekareh).
For the deterrence and prevention of adultery, it is essential to uphold the principle that the adulterer is responsible for paying the dowry and virginity compensation to the victim of adultery committed under the guise of a marriage promise. In addition to the potential physical harm, such as the loss of the hymen, adultery causes significant loss of dignity and spiritual credibility for the victim. The Islamic Penal Code of 2013 remains silent on the issue of moral damages compensation in addition to the dowry. Jurisprudential opinions on this matter are divided. Some jurists oppose moral damages compensation beyond the dowry, while others support it. However, the classification of adultery as a hudud crime does not preclude the possibility of moral damages compensation. Section 14(2) of the Criminal Procedure Act (2013) explicitly prohibits moral damages for crimes categorized as diyat and ta’zirat under Sharia law, but this does not extend to crimes classified as hudud. Furthermore, Section 9 of the Civil Liability Act (1960) acknowledges the responsibility for moral damages compensation in cases of illicit cohabitation through deceit, threats, or abuse of authority.
Therefore, adultery with the promise of marriage falls under the recent legal provisions, obliging the adulterer to compensate the victim’s spiritual damage in addition to the dowry (mahr al-mesl). In other words, there is a legal justification for imposing moral damage compensation due to adultery with the promise of marriage.
The frequent sexual intercourse of a woman with a man, in the hope of fulfilling the promise of marriage, does not absolve the adulterer from responsibility for paying the dowry (mahr al-mesl) and compensation for virginity (arsh al-bekareh) in cases of rape, especially in the initial instance. Ignorance regarding the nature and illegitimacy of adultery, particularly in adults or individuals who lack understanding, can be interpreted as non-consent. Adultery with a minor, or a girl under the age of eighteen, who is unaware of the nature and illegitimacy of the act, should be considered an example of doubt regarding illicit sexual intercourse. According to Article 91 of the Islamic Penal Code (2013), it is unnecessary to address the existence of real consent in such cases, as legal logic dictates that this should be attached to the crime of adultery. The victimized girl, in such cases, should be compensated for the harm caused.
In conclusion, the legal landscape surrounding sexual intercourse with a promise of marriage presents numerous challenges and ambiguities. These challenges highlight the need for a nuanced approach that considers both divine and human rights aspects. By ensuring the responsibility of the adulterer to compensate the victim, including for moral damages, the legal system can uphold justice and protect the dignity and rights of the victim. The complexity of this issue requires careful consideration of jurisprudential principles, judicial precedents, and the evolving legal framework to ensure fair and just outcomes for those affected by such offenses.
Criminal law and criminology
shirin bayat; yazdan seyghal
Abstract
The right to a healthy environment, closely tied to fundamental rights such as the right to life, has been widely recognized in various legal systems and international instruments. The importance of safeguarding and protecting the environment is universally acknowledged. Today, environmental protection ...
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The right to a healthy environment, closely tied to fundamental rights such as the right to life, has been widely recognized in various legal systems and international instruments. The importance of safeguarding and protecting the environment is universally acknowledged. Today, environmental protection has become a primary goal for the global community, reflected in the constitutions and legal frameworks of over 110 countries. These laws enshrine the right to a healthy environment or emphasize the necessity of environmental protection. This commitment is not limited to domestic legislative measures; many international instruments have made environmental protection a key priority.
Iran has also recognized the significance of environmental protection and has supported this cause through numerous legislative actions. Since the Islamic Revolution, the right to a healthy environment has been enshrined in Article 50 of the Iranian Constitution, with the protection of the environment being regarded as a public duty. To fulfill this responsibility, the Iranian legislature has implemented various measures. However, in some areas, these efforts have adopted a criminal and punitive approach, acknowledging the limitations of administrative and civil enforcement in safeguarding the environment and preventing harmful actions. This raises an important question: while protecting the environment, whether for its intrinsic value or for human benefit, is a worthy and desirable goal, does this alone justify criminal intervention?
Criminalization delineates the boundary between prohibited behavior and individual freedoms. Any criminal intervention, including criminalization and sentencing, inherently restricts individual rights and freedoms. Therefore, limiting individual freedom through criminalization requires clear justification. Governments must base their criminalization actions on specific principles and rationale to justify the restriction of citizens' freedoms. This article aims to explore the underlying basis of criminalization in Iran’s environmental laws, specifically in relation to the criminalization of certain environmental behaviors.
To address this, the article begins by examining one of the most significant principles of criminalization in legal systems: the principle of harm. John Stuart Mill, in his influential work On Liberty, argues that the only legitimate purpose for exercising power over individuals against their will is to prevent harm to others. Mill asserts that individuals should not be punished for actions that do not harm anyone. This principle of harm forms the cornerstone of the liberal model of criminalization.
Mill’s interpretation of harm focuses on violations of rules essential for society's survival, which harm the vital interests of others. However, this definition raises several questions in the context of environmental crimes. For instance, in order to convict someone, must their behavior result in actual damage to the environment, or is it sufficient for the behavior to merely present a risk of harm? Relying exclusively on the principle of harm as a requirement for actual and tangible damage to the environment overlooks behaviors that pose a threat to the environment but have yet to cause direct harm. This limitation weakens the ability to protect the environment effectively.
In the postmodern 21st century, often described as a “risky society,” the principle of caution has emerged as an essential component in criminal law, especially in areas that are critical and vulnerable, such as the environment. The principle of caution emphasizes the need for rational and foresighted thinking, aiming to avoid both intentional and unintentional risks. This shift in perspective has prompted changes in the interpretation of harm. In the American legal context, the development of the harm principle in Feinberg’s theory expands its scope, suggesting that harm is not limited to inherently damaging behaviors. Instead, it now encompasses behaviors that present a real or abstract risk of endangerment to the environment.
This broader understanding of harm includes both real and abstract endangerment, allowing for the criminalization of actions that may not cause immediate harm but still pose a significant risk to the environment. By incorporating the principle of precaution, criminal law can better address environmental threats before they result in irreversible damage. This shift reflects a more proactive approach to environmental protection, ensuring that harmful behaviors are addressed in advance, rather than waiting for tangible damage to occur.
In conclusion, while the principle of harm has traditionally been a guiding rationale for criminalization, its application in environmental law must evolve. The inclusion of the precautionary principle, along with an expanded concept of harm, provides a more effective framework for addressing environmental risks. This approach ensures that criminalization is not restricted to cases of actual harm but also extends to behaviors that present potential threats to environmental integrity, aligning with the global need for proactive and comprehensive environmental protection.
Code of Criminal Procedure
Rajabali Goldoust Jouybari
Abstract
In the Iranian legal system, which is based on the principle of two levels of judicial decisions, particularly in criminal cases, judicial decisions are subject to review by a higher authority to prevent judicial errors. If a criminal decision is issued by the prosecutor’s office, it can be appealed ...
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In the Iranian legal system, which is based on the principle of two levels of judicial decisions, particularly in criminal cases, judicial decisions are subject to review by a higher authority to prevent judicial errors. If a criminal decision is issued by the prosecutor’s office, it can be appealed in the general courts. Similarly, if a criminal decision is made by the general courts, it can be appealed in the provincial appellate authorities. However, the Iranian legal system has also introduced another mechanism that allows for the re-examination of judicial decisions, even after a criminal decision has become final. This mechanism is known as the retrial process, which provides a pathway for a criminal decision to be reviewed and potentially overturned.
The retrial process, as defined by the law, operates under specific conditions that allow for the possibility of overturning a final decision and presenting it to another judicial branch, ideally the same one. For instance, if a verdict contradicts the principles of Islamic law, Article 477 of the Criminal Procedure Code permits the verdict to be overturned and referred to another branch, upon the approval of the Honorable Chief of the Judiciary. Similarly, if the verdict is found to be inconsistent with certain principles, documents, or provisions of the law, the Supreme Court branch, if it deems appropriate, can order the case to be retried by the Appellate Branch. However, it seems that the Appellate Branch is not obligated to follow the Court's opinion.
The institution of retrial challenges the principle of the finality of judicial decisions. This principle, which is crucial to the integrity of the legal system, is undermined by the retrial process. While the finality of verdicts is a cornerstone of the Criminal Procedure Code, it is important to note that retrials are justified based on legal principles and rules, and the rights of the victim should not be disregarded or further harmed in the process. The protection of the victim’s rights is a matter that requires careful attention, especially when considering amendments to the Code of Criminal Procedure.
In light of these issues, this article aims to examine the role of retrial in the Iranian criminal justice system and its impact on both the finality of judgments and the protection of victims’ rights. It calls for a more balanced approach to retrial procedures, ensuring that legal standards are upheld while also safeguarding the interests of all parties involved.
Islamic jurisprudence
ahmad haji dehabadi; MAHDI Narestani
Abstract
Objective: After the Islamic Revolution in Iran, the legislator, based on Article 4 of the Constitution, criminalized the consumption and use of intoxicants. This criminalization is evident in the 1982 Penal Code (Hudud and Qisas), the 1991 Islamic Penal Code, and the 2013 Islamic Penal Code. The most ...
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Objective: After the Islamic Revolution in Iran, the legislator, based on Article 4 of the Constitution, criminalized the consumption and use of intoxicants. This criminalization is evident in the 1982 Penal Code (Hudud and Qisas), the 1991 Islamic Penal Code, and the 2013 Islamic Penal Code. The most recent criminalization in 2013 introduces innovations. Several articles have been written in defense, critique, and analysis of these innovations. However, given the lack of a comprehensive and jurisprudential analysis based on legal reasoning, a new and thorough examination is necessary. Therefore, the objective of this paper is to provide a comprehensive and cohesive analysis by presenting and reviewing the opinions of Islamic jurists, with a focus on referring to the existing Hadiths and adhering to the jurisprudential foundations.Methodology: This article, based on a library-based research method and a descriptive-analytical approach, first examines the legislative history of intoxicants’ use and consumption. Then, the definition of intoxicants, both linguistically and legally, is analyzed. Afterward, the opinions of Islamic jurists regarding the conditions for the application of the Hadd punishment for intoxicants and the ruling on repeated consumption, in light of the Hadiths and reports, are explored. The paper concludes with suggestions and effective solutions.Findings: In 2013, the legislator of the Islamic Republic of Iran introduced two innovations concerning intoxicants in their legislation: one regarding the definition of the subject for Hadd punishment—shifting from "drinking" to "consumption"—and the other concerning the punishment for repeated consumption, changing the death penalty from the third to the fourth offense. Based on jurisprudential principles, it seems that both changes are incorrect. The first change neglects caution in an area where caution is necessary, while the second represents caution where it is unnecessary.Innovation:Attention to the distinction between “obligatory rulings” (taklifi) and “situational rulings” (wadh'i), and the understanding that there is no necessary correlation between the two. In this case, it should be analyzed that the prohibition of intoxicants does not necessarily require the application of Hadd punishment. Not every prohibition of consumption entails the necessity of a punishment.The legislator’s innovation in changing the subject of Hadd punishment for intoxicants leads to an expansion of criminalization in the context of Hudud laws, which does not align with the apparent content of Hadiths, thus violating the Fourth Article of the Constitution.Conclusion: The shift in criminal behavior from "drinking" to "any form of consumption," along with the imposition of the same Hadd punishment, leads to an expansion of criminalization and an increase in the number of individuals subject to this provision. Especially since the term "intoxicant" applies to narcotic substances, this could result in the application of Hadd punishment to those consuming substances such as hashish and heroin, even leading to the death penalty in the fourth offense. However, upon reviewing the legal arguments and Hadiths on this subject, no strong evidence can be found to justify this. The established jurisprudential rulings do not support this expansion of criminalization. Therefore, it can be concluded that this change constitutes punishment without valid justification. Moreover, the increase in punishment for repeated consumption, after the Hadd punishment has already been applied for the same crime, is problematic. The vague wording in Article 136, which implies the death penalty for the fourth offense, lacks support in the Hadiths or valid jurisprudential opinions regarding the fourth offense, which historically supports the death penalty only for the third offense.
General and exclusive criminal law
Ahmadreza Emtehani; ali Mohammadi Jurkuyeh; Javad Nadi Ouj Baghzi
Abstract
With the implementation of the law on reducing the punishment of imprisonment approved in 1399, the legislator has applied many changes in the rules of material multiplicity of crimes causing punishment compared to 1392, in such a way that this change in the criteria for determining the punishment, as ...
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With the implementation of the law on reducing the punishment of imprisonment approved in 1399, the legislator has applied many changes in the rules of material multiplicity of crimes causing punishment compared to 1392, in such a way that this change in the criteria for determining the punishment, as well as the intensification and reduction of the punishment and the reason for the separation between different crimes from similar ones, has faced judges and jurists with various scientific and practical challenges. And these ambiguities have led to different inferences from Article 134 of the Amended Criminal Code, which can harm the rights of the accused. In fact, the main question of this research is as follows; What ambiguities and challenges does the amended Article 134 bring and what solutions can be offered to overcome them? In this research, in a descriptive-analytical way, while explaining the provisions of the material multiplicity of crimes causing punishment in the current law, it has been tried to examine the most important challenges in this institution, including: Distinguishing different crimes from similar ones, how to count several similar crimes from different ones, the time to recognize multiple crimes in order to apply the rules of multiplicity of crimes, examining whether or not the rules of material multiplicity of crimes are retroactive in the jurisdiction of multiple criminal laws, the criteria for realizing multiplicity of crimes in terms of the necessity or non-necessity of a time interval in multiple committed behaviors, the simultaneous summation of multiplicity and repetition of crimes.In our country, the provisions related to the multiple crimes of life have been adapted from French criminal law since 1304, and after many ups and downs, the legislator has finally passed new regulations regarding the multiple crimes in 2019 and its next amendment on 99 according to the Law on Reducing the Punishment of Imprisonment. However, since the regulations of this institution are among the most common and widely used cases in the criminal justice system, in practice, it has caused problems and challenges for the judicial system, judges, and as a result, the rights of the accused have been violated; In this article, it has been tried to fully explain the provisions of the institution of material multiplicity of crime, in the Criminal Code and its amendment, and examine the most important challenges in it. By identifying them and providing solutions to get out of these ambiguities through the interpretation of the law and discovering the intention of the legislator and relying on the rules governing the criminal laws, the unity of criteria and procedure is proposed in this regard. Providing solutions and solving scientific and practical ambiguities is one of the most important achievements of this research, which can play an important role and help in the criminal justice system in order to implement justice as best as possible.One of the issues that has been raised for a long time in the discussion of increasing punishment is the issue of multiplicity of crimes. Multiplicity of crimes is one of the cases of individualization of punishment and one of the common reasons for the escalation of punishment. General aggravating qualities are attributes that are associated with any crime and cause the punishment to increase and do not belong to a specific crime. In other words, the reasons for aggravating the punishment are the reasons that as soon as the judge finds them, he must increase the punishment for that crime. In most of the countries of the world, a person who has committed several crimes due to the delinquent nature that has penetrated into his fabric, they consider a heavier punishment for him, so that the perpetrator, while reforming and rehabilitating, returns to the embrace of society with a pure spirit and free from punishment and dangerous state. But in the term, multiplicity of crime is divided into material multiplicity and credit multiplicity. Material multiplicity, which is interpreted as real or objective multiplicity, is a situation where the perpetrator has committed two or more "independent" criminal acts and has not received a definitive criminal conviction for any of those crimes. While multiplicity of credit is the situation of a criminal who commits one act, but multiple criminal titles apply to that one act, and she has not received a definite criminal conviction for any of those crimes. In this research, considering that the subject of the research revolves around the material multiplicity, it is enough to state a simple definition of the credit multiplicity and the rules related to it are avoided due to the lack of wording.
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