Document Type : Research Paper
Authors
1 Professor, Department of Criminal Law and Criminology, Faculty of Law, Shahid Beheshti University, Tehran, Iran.
2 Researcher at the Iranian Law and Legal Research Institute and Master's degree in criminal law and criminology, University of Tehran, Tehran, Iran
3 Researcher at the Iranian Law and Legal Research Institute, and Master of Jurisprudence and Fundamentals of Law, Allameh Tabatabai University,Tehran,Iran
Abstract
Under Article 136 of the Islamic Penal Code (approved in 2012), the legislator has outlined the sentence of repetition in Hadd crimes. In accordance with this article, the punishment for committing a Hadd offense for the fourth time is death. However, neither the text of the law nor the legal doctrine addresses the case in which there is a mistake in counting the number of times the Hadd is applied. As an example, in the event that the perpetrator is punished four times with the same Hadd punishment, the death sentence can be imposed on them the fifth time, in accordance with Article 136.
The present study is intended to answer the following question: "What is the effect of making a mistake in counting the repetitions of the Hadd punishment?" There are many examples of making a mistake in counting the number of times the Hadd punishment has been enforced, and it is possible to approximate more or less the number of repetitions, even though a number of examples are provided in the jurisprudence in this case.
It is possible to consider three hypotheses in relation to the impact of the mistake on the punishment for repeating the Hadd: 1) The absolute absence of the consequence of the mistake in counting how many times the Hadd is executed, and the allowance of executing the death sentence in subsequent rounds. 2) The relative impact of the mistake, in such a way that if the perpetrator is responsible for the mistake, the mistake is not effective in counting the number of times the sentence is executed, and if the perpetrator is not the person responsible for the mistake, the fulfillment of the mistake will result in the exemption from the death sentence. 3) The absolute effect of the mistake and the prohibition of executing the death sentence in future rounds.
In the present research, firstly, various cases in which a mistake was found in counting the number of repetitions were examined, then the three hypotheses mentioned were assessed based on the examples mentioned, and finally, the hypothesis of the absolute effect of the mistake in the number of repetitions, which caused the punishment prescribed in Article 136 to be extinguished is favored.
Keywords
Main Subjects
- Ashuri, Mohammad, Criminal Procedure Code, second volume, Tehran, samt, 8th edition, 2007
- Ardabili, Mohammad Ali, General Criminal Law, second volume, Tehran, Mizan, 23rd edition, 2010
- Bejnordi, Seyyed Mohammad, Qa'ave Faqhi, first volume, Tehran, Aruj Institute, third edition, 2022
- Jafari Langroudi, Mohammad Jafar, i, Tehran, Ganj Danesh, 6th edition, 2001
- Jannati, Mohammad Ibrahim, sources of ijtihad from the perspective of Islamic religions. Tehran, Kayhan, first edition, 1991
- Darvishzadeh, Mohammad Javad, Case Study on the death penalty for Wine drinking with Five conviction records, master's thesis, Allameh Tabatabai University, 2021
- Shambiati, Houshang, General Criminal Law, second volume, Tehran, Majd, third edition, 2010
- Fazel Lankarani, Muhammad, Principles of Shia jurisprudence, Qom, Imams of Athar Jurisprudence Center, first edition, 2002
- Kaynia, Mehdi, Fundamentals of Criminology, first volume, Tehran, Mizan, first edition, 2009
- Gurji, Abolqasem, legal articles, second volume, Tehran, University of Tehran, first edition, 1995
- Mohseni, Hassan; Davodi, Hossein, The Ex turpi causa non oritur action, ex dolo malo non oritur action maxim and Illegality defense, Justice Journal, No. 116, 2021
- Mohaghegh Damad, Seyyed Mustafa, Discussions of Usul Fiqh, Tehran, Islamic Sciences Publishing Center, 7th edition, 1993
- Mohaghegh Damad, Seyyed Mustafa, Civil Jurisprudence Rules, Tehran, Islamic Sciences Publishing Center, 28th edition, 2010
- Meghari, Ahmad and colleagues, Dictionary of Principles of Jurisprudence, Research Institute of Islamic Sciences and Culture, first edition, 2010
- Mousavi Bejnvardi, Seyyed Mohammad, Rule of ighdam, Legal Perspectives Publication, No. 2, 1996
- Mirmohammad Sadeghi, Hossein, General Criminal Law (3rd Volume) Social Reaction Against Crime (Punishments and Protective and Educational Measures), Tehran, Dadgosatar, First Edition, 2022
- Mir Mohammad Sadeghi, Hossein, Crimes against persons, Tehran, Mizan, 28th edition, 2020
- Mir Mohammad Sadeghi, Hossein, Judicial Development, Strategic Management Research, No. 25 and 26, 2001
- Nobahar, Rahim, Rethinking Jurisprudential Evidences for the Death Penalty in Relation to Repeatation of Specific Crimes (Hudud), Criminal Law Research Quarterly, Tehran, No. 5, 2013
- Hashemi Shahroudi, Seyyed Mahmoud, second volume, Farhang Fiqh, Qom, Institute of Islamic Jurisprudence Encyclopaedia, second volume, second edition, 2009
پ. انگلیسی
- Black, Henry Campbell (1910). Black's Law Dictionary, m.a, second edition, st.paul, minn. west publishing co.
- Lord Sumption (2012). Reflexions on the law of illegality, Chancery Bar Association.
- Martin, Elizabeth a (2003). a dictionary of law, fifth edition, oxford, university press.
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