CRIMINAL LAW DOCTRINES
Year:2011 | Volume:- | Issue:1|Papers Count:8

The system of criminal justice has its permanent and constant customers that occupies a significant place of its activities and tasks. Criminals and particularly professional criminals and the victims (among them the repeated victim) are the permanent and usual customers of the criminal system. The criminal policy of confronting and preventing of the rate of the repetition of criminality and being a victim of a crime, is the fundamental condition for reducing risen by felony.In the present article by emphasizing on the necessity of paying attention to differential policy for preventing repetition of criminality specially the professional criminals as well as stipulating the necessity of paying attention to prevent of being repeated victim, we have discussed that the authorities of enforcement of criminal justice in order to adopt non–criminal prevention approach to prevent repeated criminality and lack of proper policy in order to create this preventive mechanism in the core of the security measures in Iran. Meanwhile by considering the significance of prevention of being repeated victim, the damaging role and function of traditional criminal system observed as one of the sources which causes being repeated victim in a way that necessary condition for every changes in circle of being repeated victim, the necessity of changing the paradigmatic position towards the role of the victims, their rights and needs, are considered as some instances of justice in criminal affaires. The restorative approach is the indispensable capacity for this kind of paradigmatic change.

The protection of the victim is one of the most useful strategies in order to confront the crime of human trafficking as a felony against the human dignity. There is no doubt that the protection of the victim of human trafficking depends on the human rights values and this is because of the fact that he is the victim of the felony and is not the felon. The protection of the victim will lead him to cooperate with competent administrative and judicial authorities and aid to fulfill justice and, additionally, prevent of being a victim of a crime again.On this ground, transnational documents such as United Nations Organization protocol concerning the prevention, suppression and punishment of human trafficking, specially women and children, and in a higher degree European council convention concerning the safeguarding against human trafficking have observed various protection plans, by which help to physical, mental and social improvement of the victim and may contribute to his successful returning to his family. In the following, three instances of these solutions have been suggested: safeguarding the security and healthiness of the victim of a crime, financial reparation of the victim’s damages and helping to his (preferentially voluntary) return to the origin country. It is necessary for the Iranian criminal policy to welcome to the strategy which is selected to protect the victims of human trafficking and Iranian legislative should consider the appropriate protection measures and among them are the three mentioned ones.

Criminal law is considered as the most violent branch of law that responds, traditionally and unidirectionally, to the phenomenon of criminality. In this respect, criminal law with a suppressing nature obligates the punishment on the felon; without considering his will and view in the process of making the decision.Nevertheless in the present days, the criminal law because of being affected by criminal policy instructions, criminology and human rights, has been altered and developed and has taken modern strategies for answering the felonious phenomena. The most unambiguous example of this improvement and progression is «the strategy of conventional criminal law» according to which the felon can interfere in the process of responding to the criminality. In the current research, firstly we recognize the nature of the criminal law and secondly discuss the backgrounds of appearance and the nature of the criminal law that has been transformed into contracted one.

Undoubtedly, criminal policy takes shape as a strategy for confrontation the crimes under the various social changes. Some of these changes occur on the basis of changing the foundations of social order. In pre-modern world, one of the significant foundations of social order was the observation of collective similarities and one of the most important obligations of governments was keeping these similarities, pure of moral facts, by criminalizing the acts that may be considered violating.But today by paying attention to modern philosophical debates and the importance of man among these debates, its would be considerable to observe human dignity as one of the other important foundations of social order and, consequently, it is possible to refer to it as a modern strategy in this regard.

This article studies the content of the principle of “Criminal law is the last resort” as well as its foundations and argumentations. According to the principle, criminal sanctions should be chosen only in cases where other ways and legal sanctions don’t work. The article refers to some critics raised against the principle. But according to the author, these critics often address efficiency of the principle as preventing over criminalization and not the core content of the principle and its authenticity. The article finally foundations and concepts in Islamic teachings the article concludes that the principle is, generally, compatible with Islamic teachings.

Globalization has been raised as a process in various domains of living standards of Mankind and considering the extension of crime on international level, it is to be contemplated as a necessity in the criminology domain as well.Versus the practical outcome of the development of information and communication technology, such extension has also invoked some negative consequences, providing grounds for commitment of many criminal actions on the international level.The criminal law has come to pay attention to such process for quite a time, however, criminology’s contemplation of such issues as globalization came a few decades late. Therefore, for the time being, with regard to the existing development in the variables of criminological studies, the inefficiency of such studies at national levels, and the necessity for scientific independence toward state’s social and political considerations in the subject-matter and the contribution to the development of scientific activities of criminology at an international levels require that this science join the globalization, so that while carrying out research and studies on an international level, it would provide international solutions for a global community toward the issue of crime.Even though the need for transnational studies of the issue of crime is felt in Iran, very small steps have been taken towards globalization of criminology and benefiting from the achievement of such goal.In this article, we review the issue of globalization of criminology, the need for such globalization and the steps taken therefore, while taking into considering the actions of Iranian Government in the subject matter.

The youth previously were one of the most significant and the most vulnerable strata of society and they were constantly and seriously at risk of various kinds of crimes and irreparable physical, mental, social and… injuries. Now by paying attention to their specific situations and vast using of modern information and communication technology in the present age are, in regard to any other times, under the damages. The result of this fact is the affirming and emphasizing of different legal and social systems, municipal or international on the necessary principle that youth should be protected in a special way.So, according to the above mentioned principles and irrespective of various discussions attached to the age of criminal responsibility one of the most necessary elements for protecting these age group is the specification of the border of the adulthood and childhood in order to identify the individuals that enter into this protection domain. Violating the various aspects of private sphere is one of the expansive scopes for injuring these age group which put them on the threshold of danger and would be considered a potential position for vast kinds of injuries and damages caused by criminality and of being victim of a crime. So in this direction and by paying attention to progression and development of information and communication technology one of the most challengeable issues before the youth, in this regard, is the damages of participation of these age group in two common scopes, namely, school and cyberspace each of them has its different problems and consequences and implies anticipation criminal and non-criminal managements in the comprehensive criminal policy, in order to respond and prevent in this regard.The present research aims to discuss the above mentioned issues and investigate some of rules and regulations of other countries beside considering internal sources.

The international criminal law by seeking to provide the international order and security, gradually has attempted by moving away from common law, aiming to use, such as municipal law, serious and crucial punishment to penalize the international criminals. Because of some difficulties and problems related to international criminal cooperation of the countries, it has been usually moving from an international criminal policy to an international penal (criminal) policy very slowly. And there is no doubt that the mere criminalization view rising of the source of the criminal municipal law of the countries which indicates itself as an international and suppressing policy, can not solely prevent and confront the international crimes. So, we should as municipal systems came to this result, by planning and efforts of lawyers and by programming and using the international legal procedures as well as criminal municipal law seeking a coordinated action; in this way and as a unique and active «international criminal policy» we can prevent atrocities and murdering innocent people. Changes and interferences of different systems of United Nations Organization such as Security Council, on the one hand, and the six stages experience of international criminal courts and the efforts in order to consider all instruments and criminal process for these courts, on the other, showing a kind of globalization of law and consequently refer to an international criminal policy. Accepting a kind of judicial role for Security Council in founding these courts, on the one hand, and the appearance of municipal criminal literature in the texts of articles of statutes and rules of the penal code as well as the arguments of these courts, on the other, relate a gradual illustration of an international criminal policy that, as municipal law characteristics put the individual criminal responsibility in the highest point of importance.