Code of Criminal Procedure
Mohammad Ashoori; Mohammad Hadi Javaherkalam; Hossein Ommati
Abstract
Res judicata is recognized as one of the foundational principles of modern judicial systems. In civil law, its primary aim is to prevent the re-litigation of disputes and to avoid conflicting judgments. Accordingly, invoking this principle in civil cases requires the identity of subject matter, cause ...
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Res judicata is recognized as one of the foundational principles of modern judicial systems. In civil law, its primary aim is to prevent the re-litigation of disputes and to avoid conflicting judgments. Accordingly, invoking this principle in civil cases requires the identity of subject matter, cause of action, and parties. However, due to fundamental distinctions between civil and criminal law, these conditions cannot be applied identically in criminal proceedings. In criminal law, res judicata is not only based on the avoidance of contradictory rulings but also firmly grounded in the principle of ne bis in idem—a principle enshrined in numerous international and regional legal instruments and widely recognized as an essential element of the right to a fair trial. Thus, criminal res judicata is also considered a human right. In the criminal context, res judicata bars prosecution only where the new case involves the same person and the same conduct. Yet, due to inherent differences between civil and criminal procedures—such as the doctrine of privity in civil law versus the importance of public order in criminal law—there are significant analytical distinctions, particularly concerning the identity of parties. This study is theoretical in nature and adopts a descriptive-analytical method. Data have been collected through a comprehensive review of legal sources, including Iranian statutes—especially the Criminal Procedure Code—and scholarly writings in criminal law and procedure. The study critically explores the legal concept of res judicata within Iran’s criminal justice system and compares it with its civil counterpart. Through doctrinal analysis, the research identifies conceptual and procedural differences, focusing specifically on the principle of ne bis in idem. Structural distinctions between the two fields—such as the relative nature of legal relationships in civil matters, the neutrality of civil judges (e.g., their prohibition from gathering evidence), the relativity of judgments, the role of public order in criminal law, and differing understandings of "cause," "person," and "parties"—highlight that applying civil res judicata standards to criminal proceedings is both analytically flawed and legally problematic. While classical civil doctrine requires the identity of subject matter, cause of action, and parties—a widely accepted standard in civil procedure—criminal res judicata is limited to two conditions: (1) the identity of the conduct, and (2) the identity of the parties. The first condition means that a single criminal act may only be prosecuted and adjudicated once. Even if the act can be classified under multiple legal categories, it must give rise to only one final judgment. Any attempt to issue additional judgments based on alternative classifications of the same act violates ne bis in idem. Regarding the second condition, the concept of "party identity" in criminal law must be interpreted in light of the distinct roles of private complainants and public prosecutors. Although the term appears in both civil and criminal doctrines, it carries different legal implications in each. Once prosecution has concluded—whether initiated by a private complainant or a public prosecutor—a new prosecution for the same conduct is barred under criminal res judicata. However, victims may still pursue civil claims for damages in competent courts. Moreover, a person prosecuted, tried, and sentenced for a specific act as a principal or accomplice cannot later be prosecuted for the same conduct under a different classification (e.g., aiding and abetting). Similarly, a final conviction for direct perpetration precludes the prosecution of others as direct perpetrators unless they are shown to have acted as accomplices.
General and exclusive criminal law
Mohammad hosein Shaker ashtijeh
Abstract
The criterion of area, meaning that length, width, and depth must be observed in the case of the crime against physical integrity, is described in the book of Qisas of the Islamic Penal Code. In Article 394 of the Islamic Penal Code, the legislator has considered it necessary to observe the equality ...
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The criterion of area, meaning that length, width, and depth must be observed in the case of the crime against physical integrity, is described in the book of Qisas of the Islamic Penal Code. In Article 394 of the Islamic Penal Code, the legislator has considered it necessary to observe the equality of length and width in the qisas of injuries. Strict observance of equality in length and width may cause the crime to spread to the limb adjacent to the limb subject to qisas, and this will mean the execution of qisas on two limbs. The legislator has paid attention to the prohibition of executing qisas on a limb other than the same limb, and therefore, if the length of the limb subject to qisas is less than the length of the injured limb in the victim, while prohibiting the execution of qisas on the other limb, it has ordered the payment of blood money for the excess of the crime. The legislator has ruled on the similarity of length and width based on the extent of the crime committed against the victim, and in fact, the victim is an indicator for determining the amount of punishment in the execution of qisas. However, the legislator considered the depth of the crime to be the truth of the crime in the body subject to criminal retribution, and in other words, he considered similarity in depth to mean the realization of the title of a similar crime in the crime, and he did not consider the observance of similarity in area to mean the implementation of retribution based on the millimeter measurement of the depth of the crime committed against the victim. The legislator took a dual approach to fragmenting the area criterion and considered the crime as an indicator for determining the depth based on the truth of the crime and the victim as an indicator for determining the length and width. A search of jurisprudential texts shows different statements in this regard. Since no explicit narration has explained this issue, there is no choice but to adhere to the saying of the Supreme Court based on the relevant principles in the book of retribution and how to implement retribution in similar cases. One of the principles raised in the implementation of punishment is the proportionality of the punishment to the degree of criminal responsibility, meaning that the criminal is condemned to bear and implement punishment on his physical integrity in proportion to the crime he committed against the victim. Proportionality of crime and punishment means that the punishment is determined in accordance with the crime committed, and in the next stage, it is necessary to determine the amount of punishment in proportion to the criminal responsibility. This principle, adhering to the principles of justice, fairness, and human dignity, rejects the victim as an indicator, and dictates the necessity of determining the criminal as a single indicator in all dimensions of depth, length, and width to observe similarity in the implementation of retribution, in such a way that first the proportionality of the crime committed on the victim is measured in proportion to the entire body, and in this proportion, retribution is carried out on the criminal. In addition to the fact that the execution of retribution in similar cases implies that it is carried out in accordance with the principle of proportionality of punishment to the degree of responsibility, for example, retribution is carried out for a large hand equal to 50 cm against a small hand equal to 30 cm, or vice versa, retribution is carried out for a 20 cm hand against a 40 cm hand, or if half of a fingernail equal to 2 cm is cut off, it is cut off for half of the fingernail on the limb subject to retribution, while if the intention is to execute exactly 2 cm, the entire fingernail of the criminal, which is equal to 2 cm, may be cut off, and in neither case is there a ruling on paying or receiving the difference in the crime. Therefore, the principle of proportionality of punishment to the degree of responsibility, along with the procedure for executing retribution in similar cases, implies the need to determine a single indicator, namely the criminal, in the execution of retribution. This research, the ruling of Article 394 of the Criminal Code, It considers the principle of respecting the equality of length and width in the body subject to retribution to be contrary to jurisprudential and legal principles, and in addition, it considers the payment of blood money in relation to the excess of the crime if the length of the body subject to retribution is less than the length of the injured body of the victim to be an attack on the property of the criminal. However, it considers the ruling of the law regarding the truth of the title of the crime in the body subject to retribution to be in accordance with jurisprudential and legal principles. Therefore, it proposes to change Article 394 of the Criminal Procedure Code to read as follows: “It is necessary to observe the equality of length, width and depth in retribution for injuries. This equality is calculated and enforced on the criminal based on the name of the crime in depth and the ratio of the length and width of the crime to the total area of the body of the victim.”
General and exclusive criminal law
Amir Etemadi
Abstract
Computer fraud refers to criminal behaviors carried out specifically through the use of computer networks. These offences have created new opportunities for fraudulent activity, particularly because computer-based fraud encompasses a wide range of deceptive conduct aimed at obtaining benefits without ...
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Computer fraud refers to criminal behaviors carried out specifically through the use of computer networks. These offences have created new opportunities for fraudulent activity, particularly because computer-based fraud encompasses a wide range of deceptive conduct aimed at obtaining benefits without due entitlement. Evidence suggests that the financial and personal costs of such frauds—especially through methods such as identity theft and phishing—are substantial for both individual victims and society as a whole. Moreover, with the increasing accessibility of the internet—no longer confined to desktop computers but also available via tablets, smartphones, and handheld devices—the potential for individuals to fall victim to computer fraud has dramatically increased.In the Iranian penal system, computer fraud is addressed independently from traditional (non-computer) fraud. This distinction arises from the nature of the offence: computer fraud is not merely a case of fraud committed using a computer as a tool. Rather, the computer plays a fundamental and constitutive role in shaping the actus reus of the offence. Therefore, computer fraud in Iranian law falls under the category of offences committed within a computer-based context, rather than offences committed by means of a computer.According to Iranian law, any person who unlawfully obtains money, property, services, or financial advantages for themselves or another—by inputting, altering, deleting, creating, or suppressing data, or by disrupting a computer or telecommunications system—is considered to have committed computer fraud. For criminal liability to be established, both general intent and specific intent must be proven. General intent involves knowingly and willfully engaging in prohibited behaviors while being aware of the lack of authorization and the fact that the property belongs to another. Specific intent involves the aim to obtain financial gain or benefits for oneself or another individual.In contrast, under the English and Welsh legal system, computer fraud is not categorized as a standalone offence but is prosecuted under the broader umbrella of the general offence of fraud, as defined in the Fraud Act 2006. This includes three primary types: fraud by false representation, fraud by failing to disclose information, and fraud by abuse of position. For example, in fraud by false representation, the dishonest act may include phishing, pharming, presenting someone else's credit card, or using another person’s PIN at an ATM. These acts are not limited by medium and can be performed through digital platforms.Fraud by failing to disclose information can also occur via digital means—such as failing to disclose essential facts when renewing a television license online or applying for car insurance through an internet portal. In all such cases, the perpetrator must act with malicious intent, and ignorance may serve as a defense against establishing this element. However, in the context of fraud by false representation, recklessness can also satisfy the mental element required for liability. If the perpetrator is aware of the possibility that their representation is false but proceeds regardless, this may be sufficient to establish criminal liability. That said, recklessness may not suffice as mens rea for other forms of computer fraud, such as failure to disclose information or abuse of position.In both legal systems, specific intent remains a key requirement: the perpetrator must have acted with the intention of gaining a benefit or causing harm, even if that outcome is not ultimately realized.This article critically examines the key elements of computer fraud under Iranian, English, and Welsh law. It concludes that certain deficiencies exist in the Iranian legislative framework. These include the absence of a comprehensive general offence of fraud and the failure to recognize recklessness as a valid form of mens rea in the context of computer fraud. Addressing these shortcomings is essential for more effective legal responses to cyber-enabled criminal conduct. Furthermore, doing so would help reduce the over-proliferation of criminal statutes and eliminate the need for speculative interpretations concerning the offender’s mental state.
Islamic jurisprudence
Hossein Farzaneh
Abstract
This paper examines the legal and jurisprudential status of the Mumsik (the individual who restrains the victim) and the Nadhir (the observer) in cases of premeditated murder under Islamic criminal law. Although these individuals do not directly commit the act of murder, they play significant roles in ...
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This paper examines the legal and jurisprudential status of the Mumsik (the individual who restrains the victim) and the Nadhir (the observer) in cases of premeditated murder under Islamic criminal law. Although these individuals do not directly commit the act of murder, they play significant roles in either facilitating or witnessing the crime. Their potential criminal liability and corresponding punishment are analyzed within both Islamic jurisprudence and Iranian criminal law frameworks.IntroductionThe study explores the extent of culpability for individuals who, while not the principal perpetrators, are complicit in intentional murder. Specifically, it considers the roles of the Mumsik and Nadhir, examining how their involvement is interpreted in traditional Islamic law and how it is addressed in modern Iranian criminal legislation.Legal Theories and PunishmentsIn Islamic jurisprudence, the Mumsik has traditionally been subject to life imprisonment, while the Nadhir may face the severe penalty of blinding. The paper evaluates these punishments through three key jurisprudential lenses: the doctrine of Hadd (fixed punishments that are divinely mandated and not subject to alteration), Ta'zir (discretionary punishments determined by the judge based on case-specific circumstances), and Qisas (retributive justice, where punishment mirrors the crime committed).Islamic Jurisprudence and Iranian LawThe study engages with both Shiite and Sunni interpretations concerning the roles of Mumsik and Nadhir, offering a comparative view of how these figures are treated under Islamic law. In Iranian criminal law, although these specific roles are not explicitly codified, their actions are addressed under the broader doctrine of complicity. Iranian law adopts a more discretionary approach, allowing judges to tailor punishment according to individual circumstances. This flexibility is argued to be more in line with contemporary understandings of justice.A Justice-Centered CritiqueThe paper challenges traditional juristic views that call for fixed and severe punishments for Mumsik and Nadhir. It argues that criminal justice must be grounded in principles such as proportionality and the individualization of punishment. Discretionary sentencing under Ta'zir is presented as more consistent with these principles, enabling a more equitable judicial process that considers the intent and level of involvement of each party.The Principle of Proportionality and Human RightsProportionality remains a cornerstone of both Islamic legal theory and modern human rights discourse. The research underscores that the imposition of Hadd punishments—such as life imprisonment or corporal punishments like blinding—on secondary participants in a crime may violate contemporary standards of human dignity and could be considered inhumane. The paper advocates for a reinterpretation of these punitive measures in light of evolving legal and ethical norms.ConclusionThe study concludes that the punishment for the Mumsik and Nadhir should fall under the category of Ta'zir, which allows for judicial discretion and ensures alignment with principles of proportionality, individual justice, and human rights. This approach supports a more humane and context-sensitive application of criminal law in cases of intentional murder involving secondary participants.
Criminal law and criminology
Meysam Abbasi Lahroudi; Mohammad Rasaei; Mohammad Bahrami Khoshkar; Seyyed Abolghasem Naghibi
Abstract
Identity theft has become a prominent issue in both media and public discourse and is recognized as one of the fastest-growing crimes globally. It is a national and international concern and often plays a central role in transnational crimes. Typically committed for the purpose of fraud, identity theft ...
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Identity theft has become a prominent issue in both media and public discourse and is recognized as one of the fastest-growing crimes globally. It is a national and international concern and often plays a central role in transnational crimes. Typically committed for the purpose of fraud, identity theft involves an individual using another person’s identity without their knowledge, posing a major challenge in the digital age. While identity-related crimes are not new, the digital era's increased access to and reliance on personal information has significantly facilitated their rise and ease of execution.Perpetrators commonly use stolen personal information to withdraw money from bank accounts, open new accounts, or access services such as healthcare under the victim's identity. One of the most alarming aspects of identity theft is the broad spectrum of potential victims—including governments, companies, and individuals across all ages, genders, educational backgrounds, and income levels. The consequences can be severe, ranging from financial loss and psychological harm to a damaged credit rating, false criminal records, and extensive time and effort required to restore one's financial and legal standing.In Australia, identity crime has recently emerged as a pressing issue within the criminal justice system, imposing significant costs on the national economy and often serving as a facilitator for more serious offences such as terrorism and human trafficking. In response, Australian authorities have undertaken considerable efforts to study identity crime and develop relevant laws at both federal and state levels.This article represents the first study in our country to examine Australian laws on identity crime. By focusing on the criminalization of identity theft, the research contributes to broader criminal law scholarship. Analyzing the current legal frameworks used to prosecute identity crimes is essential for developing effective deterrents and guiding law enforcement responses. Employing a descriptive-analytical method and relying on library resources, this study explains the concept of identity theft, explores the principles underpinning its criminalization, critically reviews Australian statutes, highlights the key features of different legal approaches, and identifies fundamental differences across jurisdictions.The study’s findings indicate that, despite increasing concern about the damaging consequences of identity theft, Australian jurisdictions have not yet fully criminalized the offence. Instead, the legal focus remains on preventing broader social harm through predicate offences—such as possessing or trading identity information—that lack clear mental elements tied to the accused's intent. These offences are not only overly broad in scope but also rest on a problematic theoretical foundation centered around the mere possession of information. This breadth shifts the responsibility of defining criminal boundaries from legislators to law enforcement, which risks undermining core principles of fairness and justice in criminal law. Consequently, secondary offences may overshadow the primary crimes they are meant to support.Systematic efforts are needed to clearly define prohibited activities and avoid vague or misleading terminology. There must be a careful balance between protecting society and avoiding over-criminalization. To that end, lawmakers should provide clear, rational justifications for criminalizing specific behaviors. A standardized legal definition of identity crimes—something international bodies have yet to achieve—is crucial. Such a definition should incorporate the essential elements of identity crimes, including acquisition, production, transfer, possession, and use of identity information. Establishing this foundation is vital for understanding identity theft and formulating effective prevention, prosecution, and compensation strategies.
Criminal law and criminology
Yaser Hajipour
Abstract
The principle of territoriality has long been regarded as a cornerstone of criminal law. According to this principle, a state’s authority to enforce its criminal laws is confined to its own territory, and individuals within that territory are considered equal before the law. This concept reflects ...
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The principle of territoriality has long been regarded as a cornerstone of criminal law. According to this principle, a state’s authority to enforce its criminal laws is confined to its own territory, and individuals within that territory are considered equal before the law. This concept reflects both the sovereignty of the state and the foundational value of legal equality, ensuring that all persons—regardless of status, nationality, or position—are subject to the same legal standards within a given jurisdiction. Thus, territoriality is not merely a technical rule but a vital safeguard for fairness, consistency, and legitimacy in criminal justice.
Despite its theoretical soundness, the practical application of territorial criminal law faces substantial challenges. Modern criminal justice systems must address a wide spectrum of offenses, from minor infractions to complex, transnational crimes. However, law enforcement agencies, courts, and correctional institutions often operate under significant constraints, including personnel shortages, financial limitations, and disparities in institutional capacity. Regional diversity further exacerbates these issues: some areas experience high rates of specific crimes (e.g., drug trafficking, cybercrime), while others contend with property crimes or violence linked to socio-economic conditions. Geographic heterogeneity—urban-rural divides, border regions, and remote communities—adds further complexity to the uniform enforcement of criminal law.
These realities reveal that a strictly centralized criminal justice system may not operate effectively or equitably across all parts of a state. A one-size-fits-all approach risks inefficiencies, overburdening some regions while leaving others underserved. It may also foster perceptions of inequality, as citizens in different areas experience varied levels of legal protection and institutional responsiveness. The central research question of this study is therefore: how can the formal unity of national criminal law be reconciled with the practical necessity for regionally differentiated enforcement mechanisms?
This article proposes a novel framework that addresses these issues without compromising the unity of the national legal order. The key idea is that, while criminal law should remain uniform across the state, its practical enforcement should be regionally organized based on three core indicators: The diversity and hierarchical importance of crimes within a region. Understanding the most prevalent and socially harmful crimes in each area is essential for rational resource allocation; the availability of resources and human capital in each region. Regional disparities in qualified judges, prosecutors, law enforcement personnel, and correctional staff necessitate tailored administrative strategies; geographical distinctiveness, such as differences between metropolitan areas, rural provinces, and border regions, which demand differentiated operational approaches.
Based on these indicators, a political-judicial management system can be designed that allows for greater flexibility and responsiveness. This system does not fragment the national legal order but instead introduces an adaptive administrative layer that aligns the enforcement of criminal law with local conditions while remaining grounded in shared legal principles. A structured model of regional administration can improve efficiency, reduce systemic bottlenecks, and promote fairness.
The contribution of this study lies in bridging the gap between normative legal principles and practical constraints. While legal scholarship has focused extensively on the formal requirements of territoriality and equality, less attention has been paid to the concrete difficulties of implementing these principles in diverse regional contexts. By emphasizing the importance of regionally adaptive administration within a unitary legal framework, this article offers a pathway for reconciling idealistic legal values with on-the-ground realities. Methodologically, the study employs a comparative and analytical approach, drawing on criminal law theory, public administration, legal geography, and case studies from jurisdictions that have experimented with regional autonomy in judicial administration.
The expected outcomes of such a system are multifaceted. First, it would increase efficiency by channeling resources to areas of greatest need, thereby reducing delays and case backlogs. Second, it would promote equity by ensuring that individuals in different regions receive comparable levels of legal protection, even if administrative models differ. Third, it would enhance legitimacy, as citizens would perceive the justice system as more responsive to their specific circumstances. Finally, it would create a more resilient system—better equipped to address emerging forms of crime, such as cybercrime and transnational offenses, which often vary significantly across regions.
In conclusion, while the territorial application of criminal law remains indispensable as a foundational principle, the realities of contemporary governance demand a more nuanced, regionally sensitive approach to enforcement. By organizing the administration of criminal justice around the diversity of crimes, the availability of resources, and geographical particularities, states can enhance both the effectiveness and legitimacy of their legal systems. Ultimately, this analysis demonstrates that territoriality and regionalization are not mutually exclusive but rather mutually reinforcing principles that form the basis of a balanced, equitable, and sustainable model of criminal justice in the twenty-first century.
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