CRIMINAL LAW DOCTRINES
Year:2015 | Volume:- | Issue:8|Papers Count:8

the issue of apostasy (irtidad) and its capital punishment has been a circus and arena of the different thoughts and beliefs from the point of religion and out of religious look and human rights and it has provided troubles for statesmen and the Islamic jurisprudents and jurists. The legislator of Islamic republic of Iran has not determined directly a punishment for the offense of apostasy (irtidad) in any Articles or notes and has been silent. This purposeful silence implies that the legislator is not inclined toward criminalization of apostasy (irtidad). According to the Islamic traditions and infallible sayings, apostasy is a capital crime and sin but we will prove in this essay that the practical sirat ahl-al bayt and the Imami jurisprudents have been to tolerate apostates and forgive them for some advantages which it implies that the punishment of apostasy has been set aside. Moreover, it will be mentioned that the absoluteness of Islamic traditions (ahadith) indicates that the subject of apostasy is merely conversion to another religion and is restricted to the negation and lack of belief. Also it shows that the acceptance of repentance does not specify to the apostates who had previously converted to Islam from the other religion but also includes the apostates who was born in Islam and following the effects of repentance for them.

the economic, political and social evolutions during the 1980s caused the criminal policies with emphasizing on the criminal strategies and separation from the scientific approaches in crime control face excessiveness and additionally putting aside the welfare policies, they have separated from criminal justice also. For efficiency of social policies in enabling people to access social justice, it is necessary the relationship between these two concepts. Social justice does not occur without criminal justice and criminal justice without social justice is useless, inefficient and unfair. The most important reasons for distinguishing between social justice and criminal justice are neglecting the role of citizens for proposing social and criminal policies and granting the citizenship rights being bound to obey obedience laws, emphasizing on criminal policy for reduction and prevention of crime, separating the criminal policy organization from social and welfare ones, applying management skills and techniques in organization of criminal justice systems, emphasizing on the quantity of the system achievements instead of focusing on the enhancement of quality and also the absence of the common guiding principles or general principles to codify criminal and social policies toward a goal. Besides dignifying the criminal procedures, the relationship between social justice and criminal justice has a significant importance to prevent budget waste, human and material resources and time and causes the citizens access the equal opportunities. The other positive consequences of the relationship between these two concepts are the citizen interest to the community, increasing legal stability and occurring legality. Achieving these results cannot take place unless the practical principles to creating relationship between them are recognized. The principles are: recognizing all citizens and respecting their rights, redistribution of opportunities, resources and equipment in order to increase citizen participation in community, the balance of citizen responsibility and stability and holism (comprehensiveness) in policing.

Terrorism is a phenomenon which considerable attention has been focused on in recent years. In this respect, the criminal code is one of mechanisms has been regarded to combat terrorism. Although the penal code is a tool to response the crimes of punishments of offenders, political entity of terrorism can separate the criminal code from its basic principles in order to combat terrorism procedures and establishing Tool-using for politicians. Notwithstanding this danger (risk), the criminal code has many privileges to the non-legal alternatives which based on the criminal code; it can be preferred to other methods like war. Still, the suggested method is creating a comprehensive method to combat terrorism entities which it is to employ every of these methods besides the others.

One of the important mechanisms in the area of the criminal policy is criminalization. According to it, the legislator in order to support the public order and ethical values criminalizes some conducts. It is important that the legislator step cautiously and accurately toward applying this mechanism because criminalization causes the limitation of the individual freedom and legal matters and follows the negative consequences such as problem in judiciary performance. The legislator with respect to the consequences of criminalization in the chapter VIII of the 5th Five-Year Economic, Social and Cultural Development Plan (5th FYDP) has set out the reduction of offensive titles and litigation as the duty of the judiciary. But the judiciary in the penal code of Iran (codified 1392) without paying attention to the principles of criminalization has deviated from the regulations of decriminalization policy of the 5th Five-Year Development Plan (5th FYDP) and has made (created) new criminalization which has no antecedent in the Islamic penal code. Two topics can be mentioned criminalization according to the Islamic jurisprudential sources (Art. 220) and criminalization of disturbing peace and order in the land -fassad fil-arz- (Art. 266). Meanwhile analyzing and studying the mentioned crimes and decriminalization policy, this paper attempts to examine their effects in the law of Iran.

One of the important and fundamental debates in criminal law is the principles governing the evidences of proving criminal litigation and evaluating their positive values. The positive value of confession in penal matters has a considerable important in proving all offences including offences against persons. The evolution of the penal code of Iran has established questions and ambiguities in respect to the positive value of confession especially from the point of creative or positive role of confession in offences against persons (in Islamic penal code, some crimes are proved only by special and specific evidences -proofs- as mentioned in Islamic texts –creative but some crimes are proved by any evidences and have no specific features but only a path to reality -positive-). In spite of being accepted the positive role of confession by law doctrine and jurisdiction of Iran, the Islamic penal code (codified 1392) has indicated the creative role of some the evidences of the Islamic religious law such as confession and testimony. In order to determine the positive value of confession in offenses and the evolution of new criminal law of Iran in this area, this note attempts to study the theoretical obligations of the positive role of confession and the Islamic jurisprudential look in stating this concept. The result shows that stating of the creative role of the Islamic legal proofs in the criminal law of Iran 1392 is because of the specific legislator’s speech and discourse and it does not mean the change of the positive value of the proofs (evidences) like confession.

What lets common citizens to practice the situational prevention against possible aggressors is carrying out right (practicing laws) -implementation of the right-, social order or a combination of both. From the other side, Setting out the social order and practicing mutual regulations requires specific mechanisms for citizen’s prevention interventions against unlawful exposure. Or otherwise defending of right or preventive affairs against possible offenders will cause a tool to happen unlawful harms. With respect to the legislator silence at the issue of situational prevention and its specific techniques, debate about this premise confronts disagreement. Some believe the governing of legal defending provisions to situational prevention but opponents consider no condition for situational prevention and public necessity, therefore it makes more researches about this subject. This note aims to analyze and study situational prevention criteria which conclude aggressive criteria and the criteria of situational prevention strategies according to the opinion poll which comprises of three groups: specialists, prisoners and common people. The result shows that it is necessary to have criteria in order to limit the realm of situational prevention and responses of all three groups emphasize this obligation.

According to the principles of the criminal law, the general rule is that every country’s courts merely practices the penal code of own territory in its territory while in private law it is possible for a country to implement the other country’s statutes totally. The principle of non-authenticity of other countries’ penal codes is a principle for criminal courts which has been usually between countries and in the area of the international criminal law. In reality, the different countries believe that it is the authority of their sovereignty to exercise this principle absolutely and with no exception. Meanwhile, the necessities of the today’s communities make the different countries change this principle and accept some exceptions and some cases like the institution of transferring convicted prisoners, international rogatory commission and etc. the legislator of Iran has had a different attitude toward the nonauthenticity of foreign criminal law principle and the principle of double jeopardy from the beginning of the legislature; the Islamic penal code of Iran, codified in 1392, was calqued from the previous statues like statues of 1352 and in dealing with the regulations of international criminal law has revived the principle of double jeopardy and has diminished the principle of non-authenticity of the other countries’ criminal law.

The book of Tazir -Punishment for crime not measuring up to the strict requirements of hadd punishments- of the Islamic Penal Code of Iran has not distinguished the crime of the abstract forgery from the concrete forgery. The criminal legislator has considered the same punishment for both offences and in some cases to resolve this problem he has made different legal articles that it causes recognition of certain instances of abstract forgery crime be impossible. There is disagreement between Jurists about the definition of the abstract forgery. They regard two elements in most definitions: altering or fabricating the actuality of a document or writing and the safety of a document apparently. But they should not be found as exclusive specifications for the abstract forgery because these provisions can be occurred in the concrete forgery. The following research tries to study the criteria to distinguish the abstract forgery from the concrete one in the penal code of Iran, Egypt and France in detail. Therefore, it criticizes and evaluates the jurists’ opinions in this field based on the difference in the position of the Perpetrator of the abstract forgery and concrete forgery.