نشریه آموزه های حقوق کیفری
پیاپی 14 (پاییز و زمستان 1396)

Domestic violence against women is a concealed, chronic and widespread phenomenon in all human communities and has many harmful effects. For this reason, some investigations have endeavored to predict it to prevent its consequences. This research tries to determine the risky factors in convicted men and women who are victims such as age ratings, the historical, psychological and situational factors. Also, statistical methods with combining the risky factors quantitatively predicate the possibility of the domestic violence committed against women by men. Some of these assessments are: DVSI, ODARA and SARA which help judicial system in some countries to take decision against men who commit the domestic violence against women. With considering international strategies, it has led to change laws to protect women who are victims of the domestic violence. In the comparative study between the laws of the United States and Iran, it is observed that in Iran, in some way, the regulations like article 1115 of the civil code, article 156 of the Islamic penal code in the right of self-defense and Protection of Women Against the domestic Violence Bill imply in some way to predict the domestic violence. But the domestic violence has not been defined, a regulation specifically has not been particularized for it and scientifically, its prediction has not been regarded. While in U.S.A, strategies based on the substantive and procedural laws such as mandatory reporting of domestic violence, announcing the domestic violence being unforgivable, using victims’ supporters, detention and specialized legal proceedings have been predicted.

The customary and general categories of the offences are: Private interest criminal offenses and Public interest criminal offenses In its restrictive concept, Private interest criminal offenses are of the offences that their criminal process is in current only in the condition of the victim complaint and with his voluntary dismissal in every stage of the conviction; this process is terminated by the decree/order for suspension of prosecution. In the criminal policy of Iran, these offences follow one concept and the change of its legal instances and establishing some similar institutions does not make problem in the conceptual originality. In the criminal procedure and the penal code of Iran (1392), this boundary and separation has been paid attention by the legislature in some extent. With careful determination of the elements comprising Private interest criminal offenses and knowing how the relation between these elements, this paper tries to find out their legal effects in the criminal procedure, so that with considering the criminal and disciplinary liabilities which the judicial authorities have in their way to judge in relation to these elements, the possibility of making better decision is provided for them in this field.

The process of stigmatizing includes strategies and criminal sanctions that its aim is the labelling and shaming the accused and offenders. From the past to the present, it is in Different Countries’ Criminal Justice Systems specially the United States, and now it is more current in the mentioned country for the occurrence of the effective political events and because of governing the securityoriented policy. While having a considerable background, now in the modern penal rules (including the penal codes codified 1392 and the criminal procedure codified 1392), the labelling categorization in the criminal system of Iran has accepted and obliged that its instances in the law of Iran such as the law of America are one of the manifestation of the criminal surveillance policy. So, in this research, meanwhile reviewing the meaning and concept of labelling, it has been tried to be observed this category from the point of the manifestations of the criminal security-orientation. The result indicates that Iran legislature excessively has been inclined to label persons and it is necessary to reconsidered.

One of the institutions which is used against the convicts in the countries with the legal system of common law and sometimes in countries with written law is plea bargaining. It means that the negotiation of an agreement between a prosecutor and a defendant whereby the defendant agrees to plead guilty to change in charges or to drop some charges. This institution took place firstly in the United States and then spread to other countries and the legal systems. After the establishment of the international criminal court (ICC), these tribunals started to use this system, as the international criminal tribunal for Yugoslavia is the first tribunal which has exercised this system to resolve some cases and successively, other international criminal tribunals welcomed (accepted) it. Lastly, it has been implicitly implied by the international criminal court (ICC) in its statute. With the respect to the acceptance of this system in the international criminal tribunal specially for Yugoslavia and Rwanda, special panels for East Timor and the international criminal court, meanwhile studying the judiciary procedure and the available international documents, it will be surveyed the effects and provisions for using this system to explore and prove the committed crimes.

Subsequent to the U.N. Security Council Resolution 1757, in may 2007, special tribunal for Lebanon that aims to confront impunity the prosecution and conviction of the perpetrators of Rafiq Hariri assassination (the former Lebanese Prime Minister) was established. The two exclusive specifications of this trial in comparison to the international trials and hybrid tribunals are: trial in the defendant’s absence and in return, defending the rights of the absent defendants by the defense office. The adaption of this absent conviction to the fair procedure standards and the international human rights are counted of the important and basic challenges of these trials. The human rights institutions in the realm of the international legal system have permitted (accepted) Trial in the defendant’s absence only in the exceptional and specific cases. In this note, the reasons of the legality of the absent conviction and the method to hold this conviction in the special tribunal for Lebanon have been reconciled with the international human rights standards, through this, the level of considering the rights of the absent defendant in the criminal procedure has been revealed.

It has been emphasized on concealing evidence in the fiqhi sources such as the verses of the holy Quran and Islamic traditions. while in spite of drawing attention to evidence as one of the important crime proving reasons in the regulations of Iran, only the false (untrue) testimony has been criminalized. Findings of this paper which have been adopted according to the descriptive-analytic method and on the basis of the library documents and sources indicate that the prohibition of concealing evidence in the Islamic jurisprudential sources is certain and acceptable. According to the Quranic and hadith evidences, Imāmiyya (Arabic: ÅãÇãøیÉ) fuqaha (scholars) concur with it and it has been criminalize by the most countries. But in the law of Iran, punishment has not been determined (predicated). Therefore, it is of sins but it is not counted a crime. Generally, the prohibition of torturing witness, the witness’s right of silence and the inclusion of the punishment of the false testimony on concealing it are mentioned of the the challenges of its criminalization. With respect to the fiqhi principle “ ÇáÊÚÒیÑ á˜áø Úãá ãÍÑø㠔 Tazir (Punishment for crime not measuring up to the strict requirements of hadd punishments) is for every prohibited acts in Islam and in order to the occurrence of judicial justice and the unity criterion of the false testimony principles, it seems that the criminalization of concealing evidence is necessary in the law of Iran. Therefore the goal of this note is to assess the necessity of the criminalization of concealing evidence based on the fiqhi sources and national regulations of some countries as a crime against the judicial justice.

Although money laundering is of the secondary crimes, it has a specification (attribute) which distinguishes from these types of crimes. The independence of this crime from the primary crimes is a specific characteristic which is not in other secondary crimes and this characteristic changes the criminalization of money laundering to an effective strategy to combat organized crimes. It is difficult to unveil organized crimes because of being complex. From the other side, in the supposition of unveiling the crime, most of leaders of the organized crimes escape from the criminal justice, in the best circumstance, this justice deliver to the law ranking perpetrators. So, this inadequacy makes the criminal justice enforcers use the modern findings of the criminalization in order to criminalize a type of the secondary crimes which aims the main leaders and users of the offensive organizations without the necessity to explore and prove the predicate offence. if the conviction to this crime is dependent on proving the predicate crime, practically the goal of the modern criminalization of money laundering has not been observed. In this case, there will be no achievement except an infinite regress or sequence and the circularity. Because of defeating to explore the organized crimes which grow more complex, it has been turned to criminalize money laundering while the proof of money laundering depends on exploring that complicated crimes. Due to this, the observation of the philosophy governing the criminalization of money laundering only depends on establishing the characteristic of the independence of this crime from the predicate offence and this matter means to pass from the principle of innocent in the criminalization of money laundering.

According to the principle of the complementarity, the national courts have priority in prosecuting crimes committed within the International Criminal Court (ICC) jurisdiction. On the subject of the crime of aggression which recently the circumstances of the prosecution have been provided in the international criminal court, exercising (practicing) the mentioned principle has been faced obstacles and limits specially in the national (domestic) proceedings. Some of these limits are because of the quiddity of the crime aggression and its perpetrators that in spite of being committed by a senior member of a government, necessarily it follows the act of a government and it is committed against another government. Some other obstacles are because of the provisions of exercising the jurisdiction to the crime of aggression which in addition to ratifying the amendments to the Rome statute held in Kampala (2010), it includes cases such as the absence of issuing declaration excluding the jurisdiction of the international criminal court and the interferences of The United Nations Security Council. While studying the principle of the complementarity of the international criminal court, this paper carefully examines the obstacles and limits of the national trials of the States Parties to the Rome Statute in exercising the crime of aggression.