LEGAL STUDIES (JOURNAL OF SOCIAL SCIENCES AND HUMANITIES OF SHIRAZ UNIVERSITY)
Year:2012 | Volume:3 | Issue:2 (5)|Papers Count:7

Retaliation is a punishment which it has been in humanity society and its first and most important property is that the guilty person is punished whit the same crime that he/she has committed. Also in Islamic punishment if someone kills or hurt another will be commanded to his retaliation. But in a case, this condition hasn,t observed, and that is the amputation of the hand of a criminal who for some reasons has no hand at all, by the complainant. If so, how the amputation of the hand punishment is done? What should we done? The jurisprudences have disagreement among themselves about this case. If so some deem the amputation of the criminal foot instead of his/her hand necessary, and some others also command to be reduced the retaliation and turned into bloodmoney. Islamic republic legislator also in article number 275 has been commanded to the limb equality necessity and in article note number of it has ordered to amputate the criminal,s foot. In this article after searche about limb retaliation and equality of the limbs, the amputation of foot instead of hand had researched. after observig two jurisprudence,s teoreis and the pros and con-proofs of criminal amputation of the foot is concluded that pros proofs failed to prove this claimer about the criminal retaliation and the necessity of his/her amputation of the foot. Then the note of article number 275 is needed to reviewing.

Criminal courts or Tribunals have to recourse to some sources when they are judging. Sources for any court or Tribunal will be concluded in the legal text. International criminal court statute in article 21 under title *Applicable Law in International Criminal court* statute determined main sources of court and categorizes their rankings. As a result, court as a criminal international jurisdiction, when issue a verdict hat to use these sources is shrine in article 21 statute and respect ranking that there is between them. Basically, there is some different, from view point of nature, hierarchy, and the sources is included in statue, and they are not equal in credit. Core question that rise is this that what are sources of in the statute that shrine in statute? What sources are not shrine in statute? What is the concept and nature of these sources? And what kind of hierarchy there is between them? The aims of this paper, is explain on nature and sources that mentioned in article 21, imply to hierarchy. This is a most important issue in international criminal court statute.

Stare Decisis the history of the traditional rules and legal infrastructure is Common Law. According to this rule, the judge of the judicial decisions of the Common Law previous similar cases to use. Judicial records in this system are the main source of Permanent Court of International Justice and the International Court of Justice in the cases referred to his previous opinion and the arguments they used in the subsequent votes. This research approach seeks to show the International Court of Justice to enforce the rule Stare Decisis.

After pasting 50 yaers, and with many efforts, international criminal court was estabilished in 1998. But stil some operational domains is in the ambiguity. One of the essentioal point of these, is the relation between International Criminal Court and United Nations especially UN Security Council, about the crime of aggression, however this court have own contractual fundation but an official relation between those organizations seems to be fundamental. Althoght in a contract, this subject is payed but it is related to the administral and technical subjects but essensial subjects are not exactly definable. In this article, tried to consider the relation between ICC and essencial elements of the UN about exercising jurisdiction over the crime of aggression to determine which organization is qualified for defining and exercising jurisdiction over this international crime.

Human trafficking is a crime regarded as inconsistent with human dignity and rights. Effective combating against it includes preservative strategies of trafficking, protection of victims and prosecution of criminals. Supporting victims of human trafficking is done according to humanitarian intentions and values of human rights since the victims are rather injured by the crime than committed it. Therefore, this support can lead to their cooperation with the justice system in order to assist enforcement of law and avoid risk of revictimization. In this regard, the transnational documents such as protocol to prevent, suppress and punish trafficking in persons, especially women and children (Palermo Protocol), and also Council of Europe convention on action against trafficking in human beings (Warsaw Convention) have anticipated the least supportive measures to support physical, psychological and social recovery of the victims in addition to help them return to their families and society. Some of the most important measures are: not to punish victims for what they have committed in the process of human trafficking, providing suitable accommodation or shelter, material assistance, residence permit, medical and psychological services, job training and rehabilitation programs, access to information, counseling and legal aids as well as facilitating participation of the victims in proceedings, translation services and so on. The European convention is advantageous over Palermo Protocol because it provided more supportive measures including recovery period and accessibility to working markets. Based on the existing deficiencies of law to combat against human trafficking, this paper suggests that Iranian criminal policies welcome initiative strategies to protect victims of human trafficking and also try to enact any law to undertake minimum measures to protect them.

This article consider relation of punitivity and public opinion with explanation of " public opinion" and "punitivity" and analyzes effect of public opinion on tendency to punishment with focus on variables such as age, gender, fear of crime and social believes, and on difference of societies in macro level. Results show that main reason for difference in extent of punitivity between individuals is their ability to Empathetic identification with criminals. In macro level main difference among various societies depends to extent of fear of crime, presence of "crime" and "justice" in campaigns and ways in which crime is covered by media. Moreover results show that punitivity is a complex and multidimensional subject and also to some extent is affected by methods of data collecting and administration of surveys. It is necessary to say that if punishing is not attended by people at high levels or regarded as an unimportant issue, public opinion may not form about it.

Currently there are two models of with and without examining magistrate in the world. In The model with the examining magistrate, the prosecution and investigation are separated; the first is for prosecutor and the second for examining magistrate. In contrast, in the model without examining magistrate, the prosecutor has the duty to investigate and prosecute crimes. Examining magistrate is facing plenty of criticism and challenges nowadays. Changes and developments in countries such as Germany and Italy which had the model with examining magistrate and the experience of the ICC show the universal tendency to abolish the examining magistrate and replace it with investigating judge whose absolute duty is supervising prosecutor functions. This observation is in bold where the prosecutor's actions could be detrimental to the freedom of individuals and their privacy. For example in Germany and Italy the prosecutor cannot issue detention order. Nevertheless in Iranian criminal procedure bill, the model with examining magistrate has been accepted.