Code of Criminal Procedure
Badie Fathi
Abstract
This article examines the distinct roles and implications of indices in evidence law within civil, criminal, and administrative lawsuits. While Iranian myths and epics like the story of Siavash or the tale of Prophet Joseph in the Quran illustrate the use of presumptions and indices as evidence, there ...
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This article examines the distinct roles and implications of indices in evidence law within civil, criminal, and administrative lawsuits. While Iranian myths and epics like the story of Siavash or the tale of Prophet Joseph in the Quran illustrate the use of presumptions and indices as evidence, there has been little scholarly focus in Persian on the differences between presumptions, and indices. This paper aims to analyse these concepts and clarify their functions and impact in legal proceedings. Despite the legislative tendency to conflate indices and presumptions, they hold different places in the hierarchy of evidence.
In many ancient narratives, presumptions and indices have served as evidence in judgments, suggesting their long-standing historical use. However, Persian literature lacks a detailed analysis of how these differ from traditional evidence forms. This article addresses that gap by exploring the terminologies and their specific applications in lawsuits. Although legislators often pair indices with presumptions, a distinction exists: indices do not hold the same weight as presumptions.
Literature Review
In Persian, the books on evidence law have explained the probative value of presumption, and Dr. Nasser Katouzian has also written independent articles on the subject of evidence in the Summer 2004 issue of the Journal of Law and Political Science of the University of Tehran, pp. 125 to 154, but there is no discussion of the difference between presumptions and indices and the probative value of indices.
Materials and Methods
The study adopts a descriptive-analytical approach and employs library research methods to examine the data.
Results and Discussion
Today, judicial decisions, especially in criminal procedure, are made with indices in most cases. Therefore, it seems that their analysis and explanation is also necessary in theory. While almost everyone thinks that there is no difference between indices and presumptions, but it seems that there are differences between them in the law of proof. Indices are in a lower order than presumptions. Although legal doctrines have paid less attention to it, judges and detectives have used it a lot in practice, which of course deserves to be promoted to the level of theoretical knowledge. This article aims to determine the position of the indices in the evidence law and it aims to discuss its difference with the presumptions and the definition of the indices and its types, the value of indices in evidence law in different stages of criminal, civil and administrative procedure.
Conclusion
Presumption itself consists of two or more indices. Indices are at a lower level than presumption and, like presumption, are divided into indices of Facts and indices of Law. Unlike presumptions (Rebuttable Presumption, Irrebuttable Presumption), indices can always be rebutted.
The identification and evaluation of indices and presumptions rely heavily on the judge's experience, intelligence, and knowledge in the relevant field. To protect legitimate rights and freedoms and uphold the presumption of innocence (the legal principle stating that every person should be considered innocent unless proven guilty or until the court believes the person is responsible for acts prohibited by law), it is advisable to assume that a single indices does not constitute a presumption. A claim should generally not be proven with just one indice, but rather from the combination of two or more indices. In situations where the law specifies certain matters, such as not providing the original document or business book as positive evidence, or in family proceedings where a husband's refusal to take a drug test is taken as evidence supporting the wife's statements, there appear to be additional possibilities: either not providing the document or the book related to the drug addiction test or giving an unreasonable justification.
However, indices have different functions at various stages of the trial. In criminal proceedings, indices can justify instances such as arraignment, arrest, and search warrants. But until an indice reaches the level of a presumption, convincing the judge's conscience, it cannot lead to someone being convicted as a criminal.
In civil and administrative proceedings, if the indices do not reach the status of presumption, they may only establish urgency in issuing provisional orders, orders to suspend execution, or to delay execution of a judgment, but cannot result in a judgment convicting the defendant.
Nonetheless, it should be noted that legislators have occasionally erred in the use of indices and presumptions.
General and exclusive criminal law
Mohammad Hasan Hasani
Abstract
Rape versus obedient sexual intercourse have different situational and obligatory rulings. Rape God's- human right aspect unlike obedient sexual intercourse purely divine aspect is the reason to adopt a differential approach based on protection of victim. Sexual intercourse with the promise of ...
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Rape versus obedient sexual intercourse have different situational and obligatory rulings. Rape God's- human right aspect unlike obedient sexual intercourse purely divine aspect is the reason to adopt a differential approach based on protection of victim. Sexual intercourse with the promise of marriage is one of the legal challenges to determine sexual intercourse classification, civil and criminal liability resulting from it and it has caused different Jurisprudential views and judicial decisions.The most important of these challenges are as follows : First- is it possible to recognize adultery with the promise of marriage to the adulterer from God's point of view as adultery with the woman's consent and from the human point of view as adultery without woman's consent, and on this basis, the adulterer should be recognized as responsible for paying the dowry [mahr al-mesl] and Arsh al-Bekareh to the victimized woman? Second, will a woman's frequent sex with a man with the hope of fulfilling the promise of marriage remove the adulterer's responsibility to paying dowry [mahr al-mesl] and Arsh al-Bekareh caused by rape in the first time? Third- is real non- consent only attributable to minors and Insane persons? Fourth, can the ignorance of adult and ignorant people about the nature and illegitimacy of adultery be recognized as an example of non- consent? Finally, is there a legal justification for imposing the responsibility of moral damage compensation due to adultery with the promise of marriage?
In this paper with descriptive-analytical method and examination of jurisprudential-legal theories and judicial procedure by emphasizing on the verdict of the general assembly of the criminal branches of the Supreme Court is proved that sexual intercourse with promise of marriage In relation to the parties may have different titles. Because of the distinction between reasons proving allegation in relation to divine and human right aspects it is necessary that just as the mere doubt on rape into its divine aspect causes exemption of death penalty, ambiguity in victim real consent into its human right aspect oblige rapist to pay conventional dowry [mahr al-mesl] and compensation for virginity [Arsh al-Bekareh]. Ensuring the deterrence and prevention of adultery requires that the principle of responsibility for adultery be accepted by paying dowry [mahr al-mesl] and Arsh al-Bekareh to the victim of adultery with the promise of marriage. In addition to possible physical damage like removal of hymen, adultery causes loss of dignity and spiritual credibility of it's victim. The Islamic penal code approved 2013 is silent on the legitimacy or illegitimacy of for moral damages compensation in addition to mahr al-mesl. Legal scholars also have different opinions on this issue. On the one hand, some lawyers are against moral damages compensation in addition to paying dowry[mahr al-mesl] and on the other hand, some jurists are in favor of moral damages compensation in addition to paying dowry[mahr al-mesl]. However, classification of adultery in crimes so called Hudud does not prevent payment of moral damages. Because Section 14(2) in the Criminal Procedure Act approved in 2013 only emphasizes that moral damages are prohibited in crimes so called Diat and Tazeerat specified in Sharia. Also section 9 in the civil liability Act approved in 1960 , in addition to mahr al-mesl, recognizes the responsibility of moral damages compensation due to illicit cohabitation with tricks or threats or abuse of a subordinate. Therefore, adultery with the promise of marriage, as an example of the recent regulation, obliges the adulterer to compensate victim's spiritual damage in addition to dowry [mahr al-mesl]. In other words, there is a legal justification for imposing the responsibility of moral damage compensation due to adultery with the promise of marriage. Woman's frequent sex with a man with the hope of fulfilling the promise of marriage will not be one of the reasons for removing the adulterer's responsibility to paying dowry [mahr al-mesl] and Arsh al-Bekareh due to rape in the first time. Ignorance of adult and ignorant people about the nature and illegitimacy of adultery can be recognized as an example of non- consent. Adultery with a minor girl or an a girl under the age of eighteen without understanding the nature and illegitimacy of adultery is an example of doubt in illicit sexual intercourse, and according to Article 91 in Islamic Penal Code approved 2013 , it is excessive to talk about the existence of real consent, and legal logic requires that it should be attached to adultery and the victimized girl should be compensated.
Criminal law and criminology
shirin bayat; yazdan seyghal
Abstract
the right to a healthy environment in the light of fundamental rights such as the right to life has been recognized in many legal systems and international instruments now, and the importance of paying attention and protecting it is not hidden from anyone.Today, protecting the environment and preserving ...
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the right to a healthy environment in the light of fundamental rights such as the right to life has been recognized in many legal systems and international instruments now, and the importance of paying attention and protecting it is not hidden from anyone.Today, protecting the environment and preserving its health has become one of the main goals of the global community, so that pursuing this goal has been reflected in the basic laws of more than 110 countries of the world as a fundamental right to enjoy a healthy environment or the necessity of protecting the environment. This aim is not exclusive to domestic legislative measures and several international instruments have put the pursuit of this goal on their agenda. In the meantime, the Iran legislator has not stayed away from this field and has supported this important issue through numerous legislative measures. Since the beginning of the Islamic revolution, the right to enjoy a healthy environment has been reflected in the 50th principle of the constitution, and supporting it has been considered a public mission. In order to perform of this public obligation, the domestic legislator has resorted to several legislative measures, which in some areas, by acknowledging the inefficiency of administrative and civil enforcement in protecting the environment and preventing actions against it, these measures have taken on a criminal and punitive face that creates an important question in the mind,although protecting the environment, either because of its intrinsic value or for the purpose of human enjoyment, is a valuable and desirable goal, but is the protection of a valuable goal enough to justify criminal intervention? Since criminalization is the boundary that determines the realm of prohibited behavior from the realm of individual freedoms, and undoubtedly, any criminal intervention in the form of criminalization and sentencing is considered a restriction on individual rights and freedoms, therefore, any action to limit the freedom of individuals in the form of criminalization, it requires reason and justification. With these explanations, governments must follow specific patterns and foundations in order to justify and legitimize their legislative actions in the way of criminalizing some of the citizens' behaviors. In this article, an attempt has been made to determine which one of the bases of criminalization has been taken into account by Iran's legislator in criminalizing behaviors related to the environment among the numerous domestic laws in the field of environment. To answer to this question, first is referred to one of the most important bases of criminalization in criminal systems, namely the principle of harm. John Stuart Mill, in an article titled about liberty, says: The only purpose for which power can be exercised over individual members of a civilized society against their will is to prevent harm to another. According to his belief, no person can be punished for committing a behavior that does not harm anyone. This, manifested in the principle of harm, is the most powerful principle in the liberal model of criminalization.
It seems that the criterion of John Stuart Mill in defining the harm and determining its extent is the violation of those rules whose existence is necessary for the survival of the society and in fact harms the vital interests of others; However, according to this definition, several questions are raised regarding environmental crimes, firstly, in order to convict someone, his/her behavior must cause damage to the vital interests of the environment, or whether the relevant behavior involves the risk of damage or harm to the environment. In response to this question, it should be said that monopolization of the principle of harm as actual and practical damage to environmental interests, ignores many behaviors that threaten the environment and cannot be effective in supporting it.
In the post-modern society of the 21st century, which is also known as the risky society, the principle of caution is associated with the need to strengthen rational and far-sighted thinking and avoid risk, intentionally or unintentionally, it has been brought to the attention of criminal legislators, especially in important and vulnerable areas such as the environment. And it has caused changes in the concept of harm. The development of the concept of the harm principle in the American Feinberg theory is interpreted in the form that the harm principle does not include only those behaviors that are inherently harmful; But it has a wider scope which is mentioned in this article under the title of real and abstract endangerment.
Code of Criminal Procedure
Rajabali Goldoust Jouybari
Abstract
In the Iranian legal system, based on the principle of two levels of judicial decisions, especially criminal ones, in order to prevent judicial errors, decisions issued by judicial authorities are always reviewed by a higher authority. If a criminal decision is issued by the prosecutor's office, it can ...
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In the Iranian legal system, based on the principle of two levels of judicial decisions, especially criminal ones, in order to prevent judicial errors, decisions issued by judicial authorities are always reviewed by a higher authority. If a criminal decision is issued by the prosecutor's office, it can be appealed in the general court, and if a criminal decision is issued in the general courts, it can be appealed in the provincial appeals authorities. However, the Iranian legal system has also foreseen another solution, which is that even despite the finality of criminal decisions, there is always the possibility of re-examining judicial decisions and the possibility that the criminal decision will be reviewed again. Based on the institutional mechanism called retrial, two methods have been foreseen in this approach. First, retrial is a condition that the law foresees and based on it and the existence of legal conditions, there is a possibility of overturning the final decision and it can be presented to another branch - preferably the same one. Therefore, if the verdict is against the principles of Islamic law, based on Article 477 of the Criminal Procedure Code, the verdict is overturned and referred to another branch upon the approval of the Honorable Chief of the Judiciary. However, if the verdict is inconsistent with some principles, documents, and provisions of the law, the Supreme Court branch, if it deems it appropriate to retry the case, overturns it and refers it to the Appellate Branch; however, it seems that the Appellate Branch has no obligation to follow the Court’s opinion. In any case, the principle of finality of verdicts is one of the principles that is violated and undermined by the institution of retrying criminal proceedings. This important strategic principle of the Criminal Procedure Code can be interpreted in only one way, and that is, the violation of the said verdict is based on legal rules and principles and does not violate the rights of the school. However, in this important challenge, the rights of the victim should not be ignored and made to suffer from this; This is something that should always be addressed with greater attention in amending the Code of Criminal Procedure
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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