CRIMINAL LAW DOCTRINES
Year:2017 | Volume:- | Issue:13 |Papers Count:8

In the law of Iran, the legislature has accepted “ consciousness and attention” merely in murdering as the criterion of the mental element in the crime of murder merely in conducts resulting in murdering besides intent. The absence of each of them causes inapplicability of the committed conducts to murder and therefore, it causes the other forms of it meaning negligence homicide and manslaughter. Every of them have its specific meaning: consciousness is intrinsic (dhati) knowledge or conceptual knowledge (‘ ilm al-husuli) to the conduct (behavior) that causes murder typically or individually or because of its situation and circumstances and the caution (attention) observes the offender at the definite time and place with respect to a matter. The presence of consciousness (knowledge) is not a reason for the presence of caution (attention) and also caution (attention) is not a reason for the presence of consciousness (knowledge). Although the knowledge of the perpetrator due to the possibility of the occurrence of the crime of murder and the subject of the crime is necessary to occur mens rea in the criminal regulations (statutes) and jurisdiction of the United States, the extreme negligence of the perpetrator due to the existent circumstances and situations and the possible consequences of the behavior (act) leads the perpetrator to be convicted of murder. In other word, the necessary mens rea element for happening murder in the United States in a form is more extension than Iran as besides intention or knowledge of wrongdoing and the possibility of murdering, the extreme negligence is placed in this area.

Crashes caused by driving and drivers of vehicles are very common in the recent years. After driving accidents, for determining the degree of liability, some theoreticians set the level of fault (negligence) of drivers (the admission of liability ranging) as criterion and some others determine the equitable liability. Therefore, two approaches of the determination of the degree of responsibility (the approach of the degree of fault and the equitability of the responsibility of fault) in the situation of the contribution in car accidents will be studied in the recent years, the legislation has tried to establish laws and regulation based on justice in this field. But what establishes difficult to occur this issue is the lack of a definite and accepted criterion between the opinions of law scholars and Islamic jurists-fuqaha-(the early and late) and even judicial precedent. But the legislature has tried to establish rules and regulations according to the justice in this area. It is the purpose of this paper to investigate precisely. Therefore, the goal of this research is to present a justice system in the condition of the degree of their fault in the car accident. For determining the level of the liability (including Diya and damages caused by crashes), the legislature has mostly followed the equitable approach. But this paper has generally deduced in the favor of the theory of the presentation of liability based on the intervention Approach to the fault.

The Criminal justice system makes the defendant (accused) enter in a process which if proved it will be followed penalties for him. Sometimes this circumstance is changed and despite the sufficient evidences and offensive conduct (behavior), the prosecutor instead of indictment, files the charge document or suspends the prosecution. Giving this great authority before trial is in contrast with the criterion of the legality of the prosecution and showing the situational approach. Because of the standard of the legality of the prosecution, the Iran criminal system does not pay more attention to this approach. This note is going to determine the origin, bases and the scope of this approach in the criminal systems of Iran with a comparative approach to the law of Germany, France, England, USA and Iran. The research consequences show that although the situational approach is rooted in the common law and the countries follow this system take much notice to it, but gradually, the Romano Germanic Law (Civil Law) systems have moved to accept some manifestations of this approach. The situational approach is based on the utilitarian approach and in the case of the correct implement, it will have four functions: the reduction of the litigation costs (court costs), the prevention of Labeling, the reduction of the criminal subject and checking files for adjudication. Islamic Penal code of Iran can get these four benefits with making this approach broaden more.

Social crime prevention is a strategy that in its current, simultaneously, with the recognition the basic social, economic and cultural rights of the citizens, prevention programs are enacted. This kind of prevention (which can be expressed the prevention through the social development) tries to produce social justice to prevent misdemeanor or felony. The occurrence of prevention has requirements and obstacles. Providing the basic rights such the right to engage in work, the right to adequate housing, the Right to Social Security, the right to education and etc. are of these requirements. But by contrast, the politicization of the concept of the crime prevention and the economic domination on the prevention policies are of obstacles. Hence, in the present day, by withdrawing from the Humanism approach in the political scope and taking notice of the Commercialization of Social Welfare in the economic scope, the officials make the possibility of the development of the social prevention strategies confront challenges.

As one of the criminal justice organizations with the goal to reduce drug trafficking, Police have interventions to increase the cost of drugs and the amount of drug seizures to create obstacles in the process of drug trafficking. These interventions cause the unintended consequences which have not been paid attention in the codification of programs. The question of the present paper is to study the quiddity of The unintended consequences of police controls over drug markets and the degree of their importance for determining the amount of the effectiveness of these programs. For response to this research question, it is used the qualitative methods and specially in-depth interview with 68 drug dealer and drug users in drug trafficking (27 drug dealers and 41 drug users) and 20 residents in the drug trafficking neighborhood (Darvaze Ghar and Shoosh neighborhoods). Findings indicate that the policing strategies in controlling drug trafficking cause the drug users commit the different offences to provide their (addictive) drug. Also, the Police Interventions because of non-observance of the interventions to reduce damages cause the health damages and even the death of drug users.

The right of the defendant’ s awareness of the exculpatory evidence in the hand of the prosecutor is of requisites for fair trial. The prosecutor’ s duty is to reveal the exculpatory evidence in his hand to the defendant. For the first time, the simple pattern of the Supreme Court of the United States indicating the recognition of this right and its importance to some extent that the non-disclosure of the exculpatory evidence leads to exonerate or tend to exonerate the defendant of guilt (the non-disclosure of the exculpatory evidence goes towards negating a defendant’ s guilt). But at international level, the collection and disclosure of the exculpatory evidence in the International Criminal Tribunal for the former Yugoslavia (ICTY) is permitted to a certain degree that it does not establish obstacles in the collaboration of the data sources of this evidence with the prosecutor. From this view, the secrecy of the sources of the exculpatory evidence is located at the first stage and the accused’ s rights at second stage. But this condition has been promoted in the International Criminal Court (ICC or ICCT) to a great extent. The prosecutor is required to disclose the exculpatory evidences to the accused. Even though the other contradictory obligations are accepted in this ground, according to it, the secondary duties do not reduce the prosecutor’ s responsibility for the disclosure of the exculpatory evidence.

The establishment of The International Criminal Court (ICC) as a permanent international court in Rome on 17 July 1998 is an important step in the process of fighting impunity. The Rome Statute of ICC through the creation of the connection between peace and international security and criminal justice has related (correlated) to the category of human rights. In the light of the Rome Statute of ICC, it can have a pivotal role in the promotion of the human rights policies. The interpretation (commentary) of the rules of the International Criminal Court (ICC) according to human rights, the nature of the international crimes related to human rights embodied the jurisdiction of The International Criminal Court (ICC), all show the evolution and perfection of the international criminal law directing to the judicial protection which is made up (consist) of human rights and criminal prosecution with the fundamental human rights violations. The International Criminal Court (ICC) in the development of human rights has been confronted with limitations such as impossibility of the expanded interpretation of human rights for the principle of the legality of crimes and punishments. The future ICC policy has revealed the level of the occurrence of human rights concerns embodied in the Rome Statute of the International Criminal Court and it makes the role of ICC become more visible in the development of human rights.

The political crime in the current of the criminal procedures is following rules which differ from the common rules observing the common crimes. Today, for ideological political reasons-the presence of the freedom of thoughts-and considering the approaches of criminology and penology-attention to honorable motivation-, law scholars and legislatures of different countries have been far from the intense system and have tended to the moderate system. Over years and the silence and negligence without justification, Iranian legislature executed his responsibility which the article 168 of the Constitution of the Islamic Republic of Iran relating to the definition of the political crime has entrusted with codifying the law of the political crime in 1395. By considering special benefits and moderation in article 6 of this law, it seems that the legislature tries to pretend the establishment of a moderate system for the political but with using statements such as the provision “ lack of intent of perpetrators to strike the origin of Islamic republic of Iran” in the definition of the political crime in article1 and a limited range of the political crime (the limits of the political crime) in article 2 and also excluding a wide range of offences from including the political crime in article 3, he has enacted to restrict the realm of the political crimes illogically. This act of the legislature is not in harmony with what is called as the establishment of the moderate system against the political offenders.