CRIMINAL LAW RESEARCH
Year:2019 | Volume:7 | Issue:25 |Papers Count:11

In contrast to private international law, a country's criminal authorities including court and the Public institution prosecution only apply their own country's criminal laws in the realm of international criminal law. However, it would not mean that all international criminal laws and sentences are discredited. Sometimes, domestic criminal laws require the courts to consider international criminal laws and sentences as well. For example, over a trial in a country, they may avoid retrial the crime committed by their nationals in overseas if the committed act is a crime in that country as well. This is very important during the preliminary investigation Process. In this Process, foreign criminal law or sentence is valid from two aspects: one is before making the final decision, and the other one is the process of making the final decision in the form of final appointments of the court. At every Process, there are some effects on each of the mentioned measures, about which there are different opinions.

There are plenty of differences of opinion when it comes to the conflict of confessions. The legislator has adopted quite a different stand to this problem in the new Islamic Penal Code in contrast with the former code and the Islamic jurists' dominant opinion. Because the Islamic jurists‘ dominant opinion is based on traditions that are encountered serious doubts, we believe that it is difficult to admit it, too. However, in our opinion, the new legislator’ s stand can also be criticized. Since we don’ t have access to a valid traditional evidence, it seems more reasonable that when it comes to the conflict of confessiona, and there is no certainty about collusion among who confess, we should exempt who confess from retaliation and blood money, and permit the avenger of blood to refer to public treasury. And, if we have certainty about the existing collusion among who confess, we should decree that avenger of blood can refer to each of them in accordance with his confession.

he rule of Dar’ e can serve two functions: It can serve as depenalization and conviction reductive. By depenalization, the severity of the punishment is reduced, or the defendant is exempted from a specific punishment. It is also possible that after perpetration of a crime the conviction is completely overturned. However, conviction reduction indicates that the defendant is completely exempted from the process of judgment, and therefore, there would be an acquittal. The legislature’ s approach tends to extend the rule of Dar’ e to the cases other than Hadd-related crimes, and this outlook is supported by the Islamic Jurisprudence on the ground that according to Quranic and Islamic proofs, Hadd cannot be solely applied to a specific kind of punishment but all kinds of punishment in general. Crimes resulting in retaliation, likewise, could benefit from the rule of Dar’ e as referred to the Islamic clerics’ view in Article 120, and the law, in this case, could cover both conviction-reductive and punishmentreductive. Whenever the case is not clear, the law comes into effect, and to put it with precision, if the material damages of the offence is not clear, the rule of Dar’ e will be conviction-reductive except for rare cases like synoptic knowledge of attributing an intentional offence to a person or persons and the consequent inability in identifying the perpetrators, in which case according to Article 482, it results in acquittal from Qisas punishment. However, in cases where there is doubt regarding ascertainment of the conditions of retaliation, and additionally, when the deed is proven, but there is doubt regarding the psychological and legal contents, the rule of Dar’ e comes into effect.

The right to be free from torture is known as an inalienable right. It has been declared absolutely forbidden in Article 38 of our Constitution. Hence, struggling against torture is of meritorious legal and cultural status. Among non-suppressive methods, the situational prevention is known as an applicable approach with visible outcomes. Due to these features, this paper, based on accepting the possibility of exercising the situational prevention regarding torture crime, deals with recognizing effectual situational preventive contrivances in decreasing this crime; contrivances like: contrivance for increasing hardship in committing crimes like immediate access of defendant to judiciary officials, contrivance for omitting justifiers like decreasing the demonstrating value of confession, contrivance for decreasing benefits ensued from crimes like nullifying the information ensued from torture, contrivance for increasing the risk of committing crime like supporting the presence of lawyers in the early processes of judgment and video surveillance during investigation process. In this text, we have shown that the best place to incorporate these contrivances is the Code of Criminal Procedure, and accordingly, the recent Code of Criminal Procedure is examined from this perspective. Meanwhile, we point out some of the removable shortcomings.

In the present study, apart from the penological and philosophical aspects, the effect of sociological changes and factors on the increasing use of the death penalty alongside its reduction in relation to drug crimes are studied. That being so, a question which is addressed in this study is: How can punishment and social solidarity theory can explicate the main reasons of increasing use of death penalty for some drug traffickers in early years of the Islamic Revolution and over the Iran– Iraq War (19801988), and public execution? At that point in time, the execution of death penalty was an emotional expression and a reflection of community anger against the violation of social values. Hence, the death penalty has presented the most significant function in such social atmosphere. However as the time passed, the attitude of people and elites towards the punishment, especially towards inflicting the death penalty on drug criminals, was upgraded. One of the most important signs of mentioned evolution is the non-execution of the death penalty in public.

The multiple Result is a situation that several results may stem from one criminal behaviour. Is the multiple Result an example of the spiritual or physical multiple crimes? There are different opinions among lawyers. Formerly, it has been considered as a multiple crime by the judicial president and equal to criminal behaviour with various titles. In 2013, Iranian Parliament with providing a criminal legislative policy and enacting Article 134 (Note1), determined the multiple result as physical (material) multiplicity and ended these dissensions. The multiple result could be realized within the multiple victim of an offence and subject of crime, and this condition is different from the situation that is resulted in several implications from one criminal behaviour. Although, the multiple result is similar to spiritual (moral) or physical (material) multiplicity in different ways, it is a different conception from those two. The purpose of this research is providing a description and analyzation of this subject and its constituent elements, investigation of its real position and implications and expression of its differences and similarities towards the multiple crime such as spiritual (moral) or physical (material), that would be studied by the descriptive and analytic method.

he present article seeks to answer the following questions: What is the status of the prosecutor in the criminal proceedings and what authority does the prosecutor deserve? Does the prosecutor's authority in Iran's criminal justice system suit his position? In this research, at first, the prosecutor's position and authority are explained in the desirable model of the criminal investigation process. In light of recognizing the desirable model, one can study the rules of Iranian criminal law. The findings of the research indicate that the prosecutor is a party to the lawsuit and that his powers should be limited to prosecution and bringing suit in the judicial authorities. In the ongoing criminal proceedings in Iran, a dual position has been guaranteed for prosecutors: a position of the public prosecutor and, on the other hand, the impartial position of the judiciary, the investigating judge or the supervisor of the preliminary investigations and the provider of the necessary training for the interrogators. In the existing legal order, the judicial position is not compatible with the position of the public prosecutor, and it cannot be accepted that the public prosecutor, at the same time, conducts preliminary investigations or supervises the investigating authorities. The results of the research indicate that in order to guarantee the defendant's defense rights, guaranteeing the material and spiritual rights of the victim and guaranteeing the standard of the criminal investigation process, it is necessary to take away the authority to conduct criminal investigations excluding Article 302, as well as the authority related to the supervision of preliminary investigations or the provision of education. In this regard, the interrogator is required to be excluded from the structure of the prosecutor's office and proceed with the consideration of the unconstrained structure of the jurisdiction.

The standardization of multiple injuries for how to claim retaliation (Qisas) or compensation (Diyyah) has been a significant part of the jurisprudential doctrines on the rules of Qisas. Contrary to the rule of multiple crime which is one of the factors of the aggravation of punishment, the multiplicity of injuries has various assumptions: Sometimes, an injury may be committed by one person against another person or others or by a few people against a person. It may also result from a blow or multiple blows, at one or different times. Islamic jurists of the Imamieh have expressed different opinions in this regard. Some of them believe in an absolute interminglement, some believe otherwise, and some of them, have different opinion depending on the unit or multiple and consecutive or alternate blows. In the Islamic Penal Code 2013, follows the famous opinion in Imamieh jurisprudence and accepts the not-interminglement opinion, except in exceptional cases, provided that the multiple intentional injuries result in a multiplicity of retaliation. In this article, by analyzing the related jurisprudential doctrines, the criteria set out in the above-mentioned law have been criticized, and proposals for amending the law are provided.

In some hadith, the execution of prescribed punishments (hodoud) is considered a source of blessing for society. In the traditional view, these hadith bestow sanctity on prescribed punishments, rendering them inflexible. Moreover, other hadith that condemn the cancellation of prescribed punishments have contributed to a rigid interpretation of their legality, leading to their unconditional execution. Taking an analytical-critical approach, this article suggests that the concept of had might in actuality refer to all divine rules and laws of sharia, not merely prescribed punishment. As such, the aforementioned hadith might be suggesting that all divine rules and laws of sharia shall be executed systematically. In this case, the application of these hadith is not limited to prescribed punishments, and no differentiation should be made between discretionary punishments (ta’ zirat) and prescribed punishments. The aim of those hadith that condemn the cancellation of prescribed punishments may not be to make them inflexible, but rather to preserve the justice process and to prevent unjustified discrimination in the execution of punishments. It is too far from the wisdom and mercy of the Holy Lawmaker to emphasize implementation of a few specific punishments among all His laws to the exclusion of other laws and non-prescribed punishments.

The key issues surrounding hybrid courts are the reasons and the legal bases of their establishment. The reasons for the establishment of hybrid courts are debatable on both national and international levels. From the national perspective, it can be due to reasons such as the inability or unwillingness of the local legal system to deal effectively and fairly with international crimes, the immunity of the heads of state in national courts, the increase of differences and political tensions in the event of the intervention of the local judicial system, and existence of legal barriers for international crimes have been addressed by national courts. From an international perspective, constraints on the jurisdiction of the ICC and the unwillingness of the SC to establish a dedicated international criminal tribunal are among the most important reasons for the establishment of hybrid courts. In terms of legal bases, these courts are divided into several categories. Some of them are established on the basis of a treaty between the relevant state and the UN or other international and regional institutions. Some others are freely formed by the UN and without a treaty. In some cases, the establishment of these types of courts is based on the national law of the State where crime is committed.

In all private actions, the recognition of parties to the action is of a significant importance. The Purpose of this research is to recognize parties to an action for damage derived from crime and their successors. It is necessary to recognize parties who may, besides filing criminal action, file a civil action in the criminal court related to damages due to crime; according to general principles governing Civil Procedures Law, if a claimant or his/her successor is not considered as a beneficiary in the filed action, or if the action does not pertain to the defendant, it would result in abatement of action, and if the claimant does not file the action in competent courts based on rules and regulations, it would result in judicial disqualification. Findings of this research indicate that generally, parties to a private action derived from crime are comprised of four groups including A) Personal claimant (victim of a crime who has undergone damages due to the crime); B) Successors of the personal claimant (including 1. Heirs of the victim, 2. Creditors, 3. Legal persons); C. Personal defendant (committer of the crime or his/her accomplice), D. Successors of the personal defendant (heirs, debtors, and persons with civil liability).