CRIMINAL LAW DOCTRINES
Year:2021 | Volume:18 | Issue:20|Papers Count:12

The principle of Dar’ (درا) as a assurance to protect defendants (the accused) from the imposition of punishment in the circumstances of doubt in their guilts. For the first time in the Islamic penal code (1392) in the formation of the canon and comprehensive has been noted. It is possible to be stablished the doubt of Dar’ in the process of the judicial proceeding by the magistrate whether he privately has doubt about the defendant’ s guilt or a the defendant’ s claim creates doubt. The Islamic penal code of Iran has not a parallel about the sufficiency of such claims and minds approach for the abolition of the punishment. Sometimes the Islamic penal code accepts the merely claim and sometimes it stipulates the possibility of the rightness without presenting criterion for it. In this paper with analytic-descriptive method, the sources of Shi'a-Imamiyyah jurisprudence have been investigated. The consequence of this research shows that the inclusion of this maxim requires to assume the possibility of the doubt related to the accused person. And according to the objective standard based on usual (customary) persons’ judgment such possibility is logical. A strong possibility is not necessary. Therefore, the apparent contradictions of the regulations which are originated from some negligence in the process of the legislation should be interpreted with considering the precedent and specially the Islamic jurisprudential bases in the aforementioned frame work.

The legislatures in the different countries believe that the identifying the criminal liability of the legal entities and determining the different types of crimes is a kind of their success. But only by the determining the degree of the responsibility and mentioning the instances of the punishments, the recognition of a legal person as accountable does not conclude. But like natural persons it is vital to consider all branches and its requirements. Otherwise only cognizance of the punishment will be the same just and traditional retributivism in the penal code. The following note with descriptive-analytic method is going to prove this object which the only prediction of punishments allocated to legal entities does not bring to end the duty of the legislature. But with observing coequal consideration to natural persons and legal entities and the other criteria, besides punishments, it should be applied the mitigating and aid institutions. One of these institutions is Judicial agreement that in this regard the conditions and the possibility of its prediction with considering the current regulations of Iran’ s criminal system have been analyzed. At the end it has been suggested that with originating from the law of France such institutions are considered meanwhile implementing the opinions of contracting the public prosecution of legal persons in Iran’ s criminal system, it also provides the financial interests for the government. With paying attention to this, it should be promoted the authorities of the prosecutor and the judicial agreement considers more penalties to the similar institutions.

The overriding criticism directed to the law of prevention and fighting fraud in producing scientific works enacted 1392 is focusing on combating the producer of the scientific works and has not criminalized the conduct of the consumer. With considering this point that in this offence, there are two parties means client (consumer) and agent (producer) and perhaps the role of client is more noticeable in committing the offense. This legislature’ s action is not true (rightful) that it confronts the agent but has neglected to criminalize precisely the behavior of the client clearly. It is possible to think that the client’ s behavior can be introduced in the form of an incitement or allurement and this thought is also in most cases is not true because the agent before and without an incitement of his client is ready to accept the consumers’ orders. From the point of actus reus, the fraud offense in ordering the scientific works is a strict liability crime. Just with ordering, supplying and delivering these works as job or profession, the offense is occurred and there is no need to any result such as the usage of the client or granting privilege and etc. but from mens rea point for its occurrence, specific intent (crime) to make profit is necessary. Actually, it is a strict liability crime that it needs a specific intent for its occurrence.

Under the article 417 of the penal code of Iran (1392), the authorization of the supreme leader or his representative in the execution of Qiṣ ā ṣ (Arabic: قصاص, Retribution) is essential. Although there has been counted many proofs and several principles for the obligation of the authorization of the Guardianship (wali al-amr) in Qiṣ ā ṣ but the continuation (Prolongation) of the procedure in the stage of the authorization results the effects such as the fear for the escape of the condemned prisoners to Qiṣ ā ṣ and the enhancement of the amount of diya or Diyah (Arabic: دیه, A compensation payment to the victim or heirs of a victim-the guardian of the blood-) in the cases of the obligatory of the payment of the difference by the guardian of the blood in order to choose Qiṣ ā ṣ . The important effect of the deprivation of liberty of the convicted to Qiṣ ā ṣ until the pronouncement of the authorized official has a general aspect and whether in the stage of requesting for authorization it is accepted Qiṣ ā ṣ or whether it is not approved, it is inevitable. In this paper with analytic-descriptive method, it has been studied the legal and jurisprudential examination of the imprisonment of the convicted in the stage of the requesting for authorization. The result shows that such imprisonment is incompatible with what have been determined in Islamic law texts about Qiṣ ā ṣ , Diyah or amnesty for prisoners convicted of intentional crimes and the imprisonment of the convicted which is the imposition of another multiplication of the punishment is not permitted. There is no specific reason for the legality of the deprivation of liberty of the convicted to Qiṣ ā ṣ . With paying attention to these outcomes, it is necessary to legitimate the time for requesting for authorization and to be reduced. If it is obligation to imprison the murderer for the society’ s interest and consequently, the Qiṣ ā ṣ is implemented, it will be necessary to be provided fair compensation.

A series of ongoing violence against Muslims in Myanmar has followed the innumerable international crimes. In the age of the accountability for the international crimes, this paper aims to answer this question which world community tools make the perpetrators be held accountable for these offences in Myanmar. At the international level, in the area of the individual criminal responsibility, the International Criminal Court (ICC) has prosecuted the crimes against humanity committed in Myanmar and the international liability of Myanmar related to the genocide against Muslims with the Gambia’ s official complaint in the International Court of Justice (ICJ) is to proceed. Also for the investigation and documentation of the human rights violations in Myanmar UN Human Right Council has applied the fact finding mechanism to record this genocide. In the national level, universal jurisdiction has provided a capacity for legal proceeding related to the massacres have been occurred in Myanmar. It has been applied in Argentina. The experience against impunity in Myanmar includes teachings for confronting the committed genocide in other crises that it is necessary to examine them.

Ahmad Mahmoud is a realist author with knowledge and familiarity with the political, social and economic issues. From one side he has observed to the crimes and offences with deliberate and critical look at his works specially in the Neighbors (Persian: همسایه ها) and from the other side he has investigated the life of the delinquent and vulnerable children (minors). With observing the story of the Neighbors with content analysis and with focusing on the factors such as age, gender, family, economic and social circumstances, place of residence and… . It is cleared that Mahmoud’ s look has concentrated on the social conditions of the low-income families and this has leaded them to pay less attention to the children (lack parental care). Therefore, the minors with companying with bad friends come in to contact with crimes. From one side with detecting their crimes, they are stigmatized as being delinquent and from the other side, inappropriate criminal justice system responses are barriers to rehabilitate them to the life without crimes.

After Iran’ s Islamic Revolution in 1357, in order to Islamize the criminal laws the legislature has applied the term “ the natural and probable consequences of acts resulting in victim’ s death” in the law of hudud and qisas and its regulations enacted 1361 originating from Islamic jurisprudential sources and established in cases that the act likely leads to the victim’ s death, the murder is intentional killing although the perpetrator doesn't intend to kill. From the perspective of the well-accepted axioms in the criminal law, the possibility of the intentional killing without intending to kill is impossible. For this reason, this method of the criminalization make some law scholars criticize. in 1392 the legislature planned to reform this fault but it did not achieve this goal. There is no such term in the law of France but the conduct of the perpetrator is regarded the factor for achieving his intent to kill.

Threats to the girls in the real space (physical space) or cyberspace from the view of the cognitive science (meaning the process of the inner of the mind) which embodies the far more vulnerable indicates the dangerous state of the perpetrator and it needs the appropriate action (dynamic) responses from the government and civil society from one side and the criminal immediate reaction measures from the other side. Criminal intervention related to the threats in the real space (physical space) was viewed the subject of the preventive security measures since 1339 and in 1375 it changed to an independent offense but its prevention aspect was neglected but its online type is paid less attention by the legislature. The present paper with analytic-descriptive method and with studying the decisions of the criminal courts: meanwhile determining the various types of the online treats to the girls in the teaching environments it has examined and mentioned the legal vacuums, the causation and the prevention method of passing from thought to action and at the end based on the criminological studies it has presented the preventive suggestions.

The well-known Islamic jurists with adducing to the authentic hadith narrated by abu Basir (Arabic: ابوبصیر ) have decided murder for the perpetrator of the unchaste hadd offense at the fourth time and a few of the Islamic jurists with adducing to the authoritative hadith of Yunus ibn Abd al-Rahman (Arabic: یونس بن عبدالرحمن) have issued murder at the third times. The author in this paper has tried to study the Islamic legal rule for the unchaste repeat crimes necessitated ḥ add (Arabic: حد) which its punishment is the execution of the perpetrator and also it has been surveyed the proofs of Imamayeh Fuqaha. From one side, it has been examined the opinion of the grand ayatollah Khuei in Takmelat al-Minhaj (تکمله المنهاج). He believes the differentiation of the decision at the third and forth time between the different instances of these offences. This paper has comprehensively criticized the evidences of the opinions. At the end with the necessity of the careful observing in Islamic legal rulings and emphasizing on the imperfection of the evidences of these three opinions and its obvious conflict and disagreement with the precaution in shedding blood, the article 136 of Islamic penal code (1392) is not valid and has no jurisprudential legality.

The Islamic penal code of Iran enacted 1392 has not predicated a particular ruling for the multiple crimes committed by juveniles and minors. This silence of the legislator makes disagreement between legal doctrine and judiciary. The author with applying the descriptive-analytic and library method and with aim to present a logical resolution for the ruling of the multiple crimes committed by minors, meanwhile studying the different attitudes and with relying on the legal standards and the general principles of the criminal law and for response to this question if the public regulations about all persons under age of 18 years old (including children and mature under the age of 18 years old) from the point of the enforcement of the punishment and security measures can be enforceable it has resulted that with considering the explicitly of Article 146 of the Islamic Penal Code 1392, the indication of the divergent meaning of Article 148 of this law in the implementation of penalty on mature persons, the explicit implication of the last part of Article 91 of the mentioned law the term ” مجازات“ (punishment) about mature persons who are under age of 18 years old and the generalizaity of the statement ” یکی از تصمیمات ذیل… “ (one of the following decisions… ) in the upper part of Article 88, the regulations of the multiple crimes for all mature persons who are under 18 years old that the social reaction against them are of the crimes is enforceable.

The legislature for confiscation and the government seizure of property as the crime devices has not observed the principle of transparency and minimal substantive and procedural guarantees. This research with descriptive-analytic method has examined the current situation in the national laws and compared it with the laws of other systems and determines reformative policies. In the current laws not only the definite instances and criteria for the confiscation and ownership of assets have not been mentioned but also have been neglected the discourse of the expropriation based on the fictional supposition of the guilty property and with justification of the prevention of the repeated crime, the principles of necessity, the proportionality, damages, independence and impartiality of the judiciary, the identity of the party and the necessity of speeding up proceedings and the right to property has faced with major risk. As a result of the study It can be said that the evidences such as the criminal aims of the seizure of property, the fundamental characteristics of the punishment in this sanction and the legitimate possession of the owner until the commitment of the crime show that the government seizure of property as instrument of crime is financial penalty. The reformative suggestions are: the domestic legal system for the enforcement of confiscation orders, besides considering substantiative guarantees including the principle of minimizing, the principle of legality, the necessity of mens rea of the abetting offence, the individualization of the criminal liability and prohibition of inhuman punishment, it should respect the procedural criminal guarantees such as the supposition of innocent and the other defendant’ s rights.

According to the famous well-known imamayeh jurists’ fatwa, the punishment of a murtad fitri (implies to a person has apostated from the faith in which he was born) is capital punishment meanwhile calling for the repentance by the Ḥ ā kim al-Sharʿ (Arabic: حاکم الشرع) is not authorized. The most proof is the Islamic traditions which have prohibited calling for the repentance. From the other side, they have established agreement between non-permissibility of calling for repentance and non-acceptance of repentance. Therefore, the apostate (Arabic: مرتد) who repents is not accepted his repentance. Based on the findings of this research which has been adopted in the descriptive-analytic method, basically hadiths which imply to the prohibition of calling for the repentance of the apostate do not mention forbidding but they have issued in the situation of the belief of the obligation, therefore, they present the authorization or at least indicate unclear (mujmal) and this results the ambiguity of hukm (legal ruling). By the way, non-acceptance of repentance depends on the duration-permanence and continuity-of the title “ murtad” (the apostate) while istishab (Arabic: استصحاب) the presumption of continuity) of capital punishment decision which is related to period of the apostasy faces with usuli (means usul fiqh) deliberation like the change of subject (mawdu`). Therefore, it seems that there is no obstacle to be requested the apostate to repent by Ḥ ā kim al-Shar and if he is not named “ murtad” (the apostate) following capital punishment will be thought.