فصلنامه پژوهش حقوق کیفری
پیاپی 42 (بهار 1402)

Despite the fact that the interrogation and initial questions and answers of the victim in the primary investigations process play a prominent role in the detection of crimes, but the physical and mental characteristics of the interrogator and the manner of the interrogation process have been disregarded in Persian criminal law studies. This article aims to answer the question with a descriptive-analytical method, what requirements should be considered in the interrogation process in the primary research stage to detect the victimization of children? To achieve this, according to the available data, the article is divided into three topics.The first topic examines the selection of the interrogator and his training. If the first step, which is to have an expert interrogator with special physiological and mental characteristics, is not taken correctly, it will definitely not be time for the other steps.  In relation to the physical characteristics of the interrogator, various studies indicate that people have a tendency to disclose crimes for women in sensitive matters such as sexual crimes, and this tendency is more prominent in the case of children due to their sensitive nature. Out of all the requirements regarding the interrogation of children, the Iranian legislator has explicitly and correctly set criteria for the gender of the interrogator. Article 42 of the Criminal Procedure Law stipulates: "If possible, the interrogation and investigation of women and minors should be carried out by trained female officers and in accordance with religious standards." In addition to physical characteristics, the main thing that plays an important role in doing an accurate and reliable question and answer is the mental characteristics and capabilities that he acquires. The increase in skill and expertise leads to the reduction of bias and incorrect mental backgrounds, and as a result, more correct and reliable information is obtained. In many countries, such as the United States, Canada, and England, training courses are held to improve the expertise and skills of interrogators, and the interrogation process is subject to pre-determined and taught protocols. The most widely used and important of these protocols, which have many similarities with each other, are: 1 Step-Wise Interview Guidelines; 2. cognitive interview; 3. Ten-step Investigative Interview; 4. National Institute of Child Health and Human Development research interview protocol.The second topic deals with the issue that after the selection and training of the interrogator, he should be able to get to know the child's condition and gain his trust in the beginning. The age of the victim, his physical, mental and spiritual abilities and problems, evolutionary or developmental considerations, ethnicity, language, culture, religion and the economic status of the family where he grows up and the places he went and comes are examples of information that should be obtained before the main question and answer session. This information can be obtained from the child's relatives, the school and kindergarten he goes to, and his doctors and teachers. After the initial acquaintance with the child, the interrogator should gain his trust by using them and by applying communication methods. Verbal and non-verbal communication, respecting the child's personal space by maintaining a proper distance and asking if the child feels comfortable with the distance between the interrogator and himself, calling him by name, Choosing words and arranging them next to each other in such a way that the child believes that the interrogator understands his painful situation and sympathizes with him has a great effect on creating empathy and intimacy between the two parties.In the last topic and after communicating with the child, It is time for the interrogator to give basic training to the child and ask the main questions and answers related to the crime. Explaining the child's role in the interrogation, teaching how to answer the questions, explaining the concepts of truth and lies to the child and gaining a detailed understanding of him in answering the questions are the effects of basic training. In the main questions and answers and according to the protocols, the beginning of the main question and answer process should be with "open questions". After the interrogator has heard the child's free interpretation and everything that was in his mind since the day of the incident, he should add to its quantitative and qualitative richness through specialized questions. The questions should not be suggestive or in such a way that their answer is yes or no.These explanations and information in various sources about this subject show that the primary investigations process, especially the interrogation session, question and answer session, interview or any other title that is placed on it, is one of the most important parts of criminal justice system, which is ultimately a huge part of the justifications for sentencing, but so far no special law or regulation has been written for its technical part. In other words, issues such as the existence of an expert and trained interrogator who has a special card should be included among the rights of the parties to a criminal case. It is clear that having legal information or work experience of the judge and officer who is responsible for the interrogation is not a guarantee for holding a useful and quality question and answer session.

Statement of the problem: 

since children and teenagers can be the audience of the legislator, they have the possibility of entering the field of criminal law regarding delinquency, and in terms of special physical and emotional conditions;  They are exposed to all kinds of injuries, especially physical, sexual and mental.  Regardless of the mentioned conditions, some children and teenagers are more exposed to delinquency and victimization due to dangerous situations, and if these conditions are not resolved, they will fall into the trap of delinquency or victimization in the near future.  This category is referred to as "children at risk" in the criminal law of children and teenagers, Since children and teenagers can be the audience of the legislator, they have the possibility to enter the field of criminal law regarding delinquency. They are in terms of special physical and emotional conditions;  They are exposed to all kinds of victimizations, especially physical, sexual and mental.Regardless of the mentioned conditions, some children and teenagers are more exposed to delinquency and victimization due to dangerous situations, and if these conditions are not resolved, they will fall into the trap of delinquency or victimization in the near future.  This category is referred to as "children at risk" in the criminal law of children and teenagers.In the meantime, growth-oriented prevention is one of the sub-branches of social prevention, with a little tolerance and a more general look focused on the types of children mentioned above.  This type of prevention, with its intervention, on the one hand, prevents children from delinquency and victimization, and on the other hand, it prevents delinquency from becoming chronic and the continuation of victimization in them. One of these intervention programs, considering the capacity of Iranian stories in the field of growth-oriented prevention, can be "story therapy" or "story-based programs", in order to prevent the formation and continuation of delinquency and victimization of children and adolescents.In this way, the upcoming article aims to examine the most important stories in the book of ancient Iranian legends, written by Fazlollah Mohtadi "Sobhi", and clarify their capabilities and functions in the field of prevention. Also, following the investigation of the level of attention of Iranian policymakers to this capability in the field of prevention, it will also pay attention.

The approach and method used in this article is based on the "content analysis" method.  The meaning of this method in the field of human sciences is to know the relationship between the sentences and to look at the whole text in order to know the main messages hidden in it.  In other words, in this method, their hidden and underlying meanings can be understood from the appearance of the words in the writings.

The findings of the present research show the high capacity of Iranian stories to be used in the field of preventing children and teenagers from delinquency and victimization, because children have long been the main audience of legends and stories.  By indirectly responding to children's needs and questions and making their imagination fertile, stories are known as the main source of teaching the most important human, moral, social, legal, cultural, etc. points for children and teenagers.If stories are used correctly, children and teenagers can be taught many tips to prevent delinquency and victimization.  In this case, both during childhood and adulthood, stories have a preventive function.  Such an issue shows itself in the field of delinquency by focusing on teaching social values ​​and beliefs, recognizing needs and managing them, and empowering individuals and society through stories.In the field of victimization, stories can increase general and specific awareness and teach effective skills in their audience, and thus be effective in preventing victimization.  Despite such wide capabilities in the field of action, educational actors such as education and the center for intellectual development of children and adolescents and culture-creating actors such as radio and television have neglected this issue and limited the implemented programs, and the only creative approach of some people  is showing.  Therefore, the lack of proper attention of the policy makers of the Islamic Republic of Iran to this preventive capacity in the field of action in an organized and scientific manner deserves serious criticism.

Authors Contributions:

 Dr. Amin Jafari, as the first author, designed the general framework and ideation for the purpose of writing and revising the article, and Ali Moulabigi, as the responsible author, collected the content, analyzed the content, submitted and edited the research.  The results and findings of the recent research have been discussed by the authors and the final version is approved by both authors.

Combating against Money Laundering and Financing of Terrorism requires access to financial information. Therefore, The Financial Intelligence Units (FIUs) as the center of receiving, analyzing and disseminating financial data have a key role in prediction of the patterns of these criminal offences and thereof prevention before their integration in legitimate earnings. Establishment of the units were initially provided in the Article 7.1.B of the United Nations Convention against Organized Crime (the so-called Palermo Convention) and the Articles 41.1.B  and 58 of United Nations Convention against Corruption (the so-called Mérida Convention) and then was elaborately provided in FATF recommendations. In Iran, the unit was established according to the repeated Article 7 of the Anti-Money Laundering Amendment Act enacted in 1397. The FIUs should be autonomous, independent and national, and comply with the principles of information security and confidentiality once disseminating them. 

This research is accomplished via descriptive-analytical approach. Comparing the FIU in the domestic law and the World Back and FATF recommendation, it seeks to analyze the role of FIUS in predicting and preventing Money Laundering and Financing of Terrorism.

The results indicate the significant role of the FUIS in predicting and preventing Money Laundering and Financing of Terrorism. In Prediction phase, after receiving information the unit conducts operational and strategical analyses on it (Interpretive Note to the Recommendation 29 of the FATF). The operational analysis is applies for prevention in micro-level whilst the strategical analysis is employed in macro-level in order to recognize the patterns and predict them. Without distinction between the two types of analyses, the Anti-Money Laundering Act has elaborated the task in the repeated Article 7-a. The requirement of issuing the National Deed of Risk Assessment by the unit is another step towards prediction of the two aforementioned crimes. The function of the unit is also considerable in preventing these crimes in different levels and types. At the first level, prevention is accomplished by drafting guidelines, which has been mentioned in the repeated Article 7.f and 7.g. The second level of prevention includes supervision on high-risk persons, regions and transactions. This task is conducted by the FIU as well. At the third level, the role of the unit manifests in cooperation with the judiciary and closer monitoring of the designated nationals. The role of the FIU can be perused in both situational and social prevention as well. In situational prevention, measures that seek to mitigate the risk or manage it, further actions on the Suspicious Transaction Reports (STRs), issuing blocking orders on property and so on are all instances of such preventive tools that the unit conducts either directly or indirectly. The reason behind the substantial role of the FIU in situational prevention lies behind its access to facilities of risk assessment. In social prevention, providing counsel to specific persons in the form of communication of guidelines (the repeated Article 7.e), provision of educational programs on detrimental consequences of these criminal offenses (the repeated Article 7.h) all are social preventive tools and suggest that the perspective the of legislator has been vaster to merely confine to situational preventive tools.

AML/CFT policies require vast cooperation between countries and immense sharing of financial data. However, Iran confronts two challenges of joining Egmont Group and international transparency in reaching this goal. Interpretive Note to the Recommendation 29 of the FATF has bound countries to join Egmont Group. Nonetheless, Iran has not succeeded in joining Egmont yet and its collaboration with other countries on data dissemination are limited to bilateral agreements. Indeed, the challenge of disseminating international data on money laundering lies behind disseminating data on sanctions. That is, some transactions of Iran with other countries is carried out via indirect methods that might be considered suspicious transaction. Also, the challenge of disseminating data on financing of terrorism returns to the Articles 154, 14.16 and 11 of the Constitution of the IRI. However, collaboration might benefit all parties. The Traditional approach of Iran towards international data disseminating would largely limit the potential of using the novel methods of cooperation and data sharing in favor of Iran. Transparency in national and international arena consists the other challenge for Iran in dissemination of data. Therefore, provision of a general reservation such as non-dissemination of data related to sanctions would largely undermine transparency.Although Iran has been successful in the field of legislative policy in recent years and most of its provisions on FIUs are in accordance with the Palermo and Mérida Conventions and guidelines and recommendations of the World Bank and FATF, it is still considered as the highest risk country on Money Laundering and following the non-compliance with the FATF recommendations, is one of the two countries in the black-list. The influence of political affairs is surely undeniable. Yet the current interaction of Iran with the international society is more divergent than convergent. Non-compliance with the FATF recommendation, non-dissemination of data and opacity all aggravate such divergent and ultimately combating against Money Laundering and Financing of Terrorism would get more difficult, resulting in long-term harms on economics of Iran.

The approach to incarceration is as old as history itself. However, as societies have developed, fundamental ambiguities have emerged in this approach. Consequently, following the knowledge of criminology, custodial sentences have been seen as inadequate in reducing crimes, preventing recidivism, and addressing the growing number of individuals in the criminal population. These factors have given rise to the de-incarceration movement, which has gained strength in response to the disadvantages of imprisonment; mainly its effects after individuals are released from prison. Thus, the use of alternatives to imprisonment has been embraced in the Islamic Criminal Law approved in 2013, where its scope, types, and formal rules were outlined in the Criminal Procedure Law of the same year. Subsequently, sub-legislative measures were formulated and communicated to the judicial authorities to implement this punishment.Nevertheless, the success of the de-incarceration movement in reducing the number of incarcerated individuals and addressing issues such as the severity of punishment has been a significant obstacle to the release of prisoners. In response to this problem, the de-incarceration movement approved the law on reducing prison sentences in 2020. Since enacting such substantive laws can have a crucial impact on issues raised in criminal proceedings, the effect of their approval in the judicial process cannot be ignored.This article has been written descriptively to study the significant changes this law has brought to the preliminary investigation process. The effectiveness of this law in achieving criminal security orders for the accused, in line with the principle of proportionality and the principle of criminal law as the last and least resort, remains ambiguous. In this regard, the question arises as to whether the principle of criminal law as the last and least resort should be incorporated in obtaining the order of criminal security or not. Furthermore, considering the development of forgivable crimes, which indicates a move towards the privatization of criminal justice, the issue arises as follows: According to Article 106 of the Islamic Penal Code, in the case of forgivable crimes, the victim has the right to file a complaint within one year from the date of crime notification. Therefore, after one year, the victim's right will expire. Given the wide range of crimes categorized as forgivable crimes in the law on reducing the punishment of imprisonment, in a situation where the victim has not yet filed a complaint due to the crime being non-forgivable, the question arises as to whether the judge should issue a suspension of prosecution according to Article 11 of the Islamic Criminal Law or consider the plaintiff's acquired rights and allow the continuation of the prosecution process.Determining the jurisdiction of judicial authorities or institutes is another challenge this law presents. For instance, in cases of criminal damage, the property's value plays a role in determining the authorities' jurisdiction. This means that when the property damage is up to ten million Rials, according to Article 9 of the Conflict Resolution Counsel Act, it falls within the jurisdiction of the Council. If the damage exceeds ten million Rials but is less than twenty million Rials, it directly falls under the jurisdiction of the Criminal Court. If the damage is less than 100 million Rials, the prosecutor's office has the authority over the preliminary investigation. Therefore, the absence of an authority to accurately determine the extent of the damage causes delays in proceedings and creates uncertainty for the judicial authorities. To prevent divergent judicial opinions and adhere to the principle of the generality of criminal procedure, as specified in Article 2 of the Criminal Procedure Law, it seems necessary to issue unanimous opinions regarding the challenges above. This will end these judicial disputes and establish a unified procedure within the judicial authorities. Consequently, when approving substantive regulations, their effectiveness should be evaluated compared to formal regulations to prevent the division of judicial opinions.

In cases where the blood money for the killer exceeds that of the victim, and the avengers of blood demand Qisas (retaliation), attaining the right of Qisas requires restitution of the difference in Diyeh to the person being avenged. The responsibility for paying the difference in Diyeh varies depending on the circumstances. It can be the responsibility of the owner of the right of retribution (the victim or the avengers of blood), the person or persons who are not avenged against, or the avenge (one administering retaliation) and their accomplice(s). However, if the issue of complicity in an intentional crime is not raised, the payment of Diyeh is solely the responsibility of the owner of the right of retribution. For example, when a man knowingly and intentionally kills a woman, the avengers of blood must pay him half of the killer's Diyeh.Despite the jurisprudential background and legislative history of Diyeh, the Iranian legislator has not stated its specific provisions in an independent chapter in the new Islamic criminal code approved in 2013, instead allocating various provisions to scattered sections. As a result, new issues in the judicial procedure face unresolved challenges due to the lack of a definitive text. One objective and factual issue that arises in a criminal case is when a third party (not the avenger of blood), without the permission of the avengers of blood, pays the difference in the killer's Diyeh during the execution of criminal sentences in the judicial fund. In such cases, questions arise regarding the approach to be adopted and the nature of this legal action. According to Article 427 of the Islamic Penal Code approved in 2013, the nature of the payment of Diyeh by the avengers of blood is to compensate for the damage caused, create balance and equality between the killer and the victim, and it is an imperative rule, not a condition for the emergence of the right to retribution (not a favorable rule). For this reason, as soon as the crime occurs, the avenger of blood has the right to retaliation, but the retaliation depends on the payment of the difference in Diyeh. If the right of retribution were based on the payment of the difference, and the guardian retaliated without paying, he would also be retaliated against. However, according to the rule of 427, he commits ta'zeer. Legislators have remained silent about the nature of payment of the difference by a third party in the Islamic criminal Code, leading to challenges and fundamental differences of opinion among lawyers and within the judicial procedure of criminal courts. One of these challenges is whether, by paying the difference in Diyeh through a third party, there is a possibility of retaliation for the avengers of blood. Additionally, once Diyeh is paid, does the third party become a stranger without rights to it? Do the rules of debt apply, or can a third party or the avengers of blood go directly to the criminal enforcement unit for reimbursement? Does the difference in Diyeh become the property of the killer or their heirs, allowing any interference, or is it solely for the fulfillment of the killer's retaliation, refundable by the third party before the retaliation? The answer to all these challenges depends on explaining the nature and examining the legal effects of this act, specifically the third-party payment of the difference in Diyeh. The importance of this matter goes beyond the presentation of a legal theory, and adhering to one of the proposed views on the nature of the third-party payment of the difference in Diyeh can ultimately determine whether the killer faces retaliation or is released from it until another time.The present research, which is novel in its kind, after explaining the basic concepts of the research, separates the nature of the Diyeh from the difference in the Diyeh and then examines the nature of the difference in the Diyeh paid by the third party from the perspective of jurists and judicial procedure and while criticizing the views of the opponents, tries to present a theory in accordance with the foundations of Islamic jurisprudence and law and their principles and rules.

The ICC ruling on jurisdiction in the Myanmar situation by relying on Article 19(3) of the Statute at the request of the Prosecutor, results which have not been known before. The ICC jurisprudence in relation to the application of Article 19 of the Statute to the situation in the Myanmar has led to conclusions that are important to examine. Therefore, reviewing the results of the ruling on jurisdiction in the Myanmar situation and identifying the exit strategy based on jurisprudence is one of the objectives and subject of this article. Research method is descriptive-analytical and relies on the Statute provisions and the ICC jurisprudence to answer research question. What are the results of the prosecutor’s request for a ruling on jurisdiction in the Myanmar situation? Research findings show that the ICC jurisprudence in the Myanmar situation not only did not prevent the loss of costs, according to the prosecutor under the concept of judicial economy, but only transferred it from the prosecutor’s office to the ICC. This view is based on two conclusions drawn from the ruling on jurisdiction in the Myanmar situation in light of the ICC jurisprudence.First, the issuance of ruling on jurisdiction did not preclude the need to consider the prosecutor’s future request for authorization of the investigation in the Myanmar situation. However, if the prosecutor had resorted to the provisions of Article 15(3) of the Statute from the outset, both the ICC jurisdiction would have been established and the investigation into the Myanmar situation would have been authorized. This is a cost that the Prosecutor has paid for by wasting time, energy and the ICC’s facilities with the theory of judicial economy in her opinion in the situation of the Myanmar. Although the Prosecutor tried to make this cost zero by resorting to the mechanism of Article 19(3) of the Statute, but the ICC jurisprudence showed that this cost is not only not zero, but it is transferred from the Prosecutor’s office to the ICC. Of course, resorting to Article 15(3) of the Statute is subject to providing the necessary documents and reasons to prove the logical basis for the need to start a preliminary investigation in the situation in the Myanmar, which is obtained for the Prosecutor after a brief review of the issue and the supporting reasons according to Article 15(1) of the Statute. But there is a doubt that the Prosecutor was forced to resort to the mechanism of Article 19(3) of the Statute. If the prosecutor was sure that the principle of objective territorial jurisdiction and the effect of the Bangladesh’s membership in the situation of the Myanmar is the basis for exercising the ICC’s jurisdiction, perhaps she would not resort the mechanism of Article 19(3) of the Statute instead of the mechanism of Articles 15(3) and 18(2) of the Statute and preliminaries.Second, recourse to the mechanism of Article 19(3) of the Statute has led to the disregard of the requirements of Article 19(2) of the Statute governing Article 18(7) of the Statute, which is related to Article 15(3) of the Statute. The competent state’s objection to the ICC jurisdiction depends on the Prosecutor’s resort to the mechanism of Articles 15(3) and 18 of the Statute, which was missing in the process of hearing and issuing the ruling on jurisdiction in the situation of the Myanmar. Therefore, the Prosecutor’s resort to Article 19(3) of the Statute without observing the formalities in Articles 15(3) and 18 of the Statute had a negative impact on the position of the state objecting to the application of complementary jurisdiction of the ICC at the stage of issuing the decision to accept jurisdiction in the situation of the Myanmar. These requirements are one of the components of a fair trial and the granting of the opportunity to challenge the ICC’s complementary jurisdiction, which was fulfilled by the prosecutor in accordance with the procedures of Articles 15(3) and 18(2) of the Statute, but did not. The right to object to the application of the complementary jurisdiction of the ICC or to prevent it by using the mechanism in Articles 18 and 19(2) of the Statute is for the state claiming criminal jurisdiction in the crimes under the ICC jurisdiction in which the Prosecutor is applying for permission to start an investigation. According to Article 15(3) of the Statute, the Prosecutor requests permission to start a preliminary investigation, and the state claiming jurisdiction immediately objects to it by resorting to Articles 18 and 19(2) of the Statute to prohibit the ICC’s complementary jurisdiction. Although this possibility is weak in the situation of the Myanmar, it should not be prejudged. Therefore, the judicial procedure thought out a solution to avoid ignoring the rights of the competent state in this regard. Therefore, the competent state’s objection to the ICC jurisdiction at the stage of issuing the order accepting the ICC’s jurisdiction was postponed to the next stage, i.e. the stage of issuing the order for the prosecutor’s preliminary investigation in the Myanmar situation.

A compound crime refers to a crime that involves two or more behaviors. The combination of these behaviors, which determine a distinct nature separate from simple or single-behavior crimes, sets apart compound crimes. The multi-behavior nature of a compound crime does not solely rely on the criminality of each behavior but on the presence of these behaviors in the specified order stated by law. Criminal law and judicial procedures generally adopt a straightforward approach when investigating criminal behavior. With a few exceptions, such as jurisdiction or law enforcement, they do not focus on the substantive differences in criminal behavior. The fundamental characteristic distinguishing compound crimes from other crimes is the longitudinal continuity of two or more behaviors. This means compound crimes are formed when the perpetrator or perpetrators engage in different behavior on two or more occasions. Consequently, the crime is separated from the resulting crime, which is the outcome of the behavior itself and not the behavior alone. However, despite the multi-behavior nature of compound crimes, it is essential to note that this crime is primarily equated with the resulting crime. In some instances, the second or last behavior in a compound crime may be considered the result of the crime, differentiating it from multiple, continuous, and habitual crimes. The multiplicity of behavior in a compound offense is the primary condition for committing the crime. However, this characteristic also brings it close to multiple crimes. In a compound offense, the individual behaviors do not necessarily constitute separate crimes. Instead, their presence together leads to the commission of a compound crime. On the other hand, in multiple crimes, each behavior is considered a distinct crime, and the multiplicity of the crimes occurs when the perpetrator commits multiple behaviors, with each behavior implying an independent crime. This is the main difference between these two categories. In a continuous crime, a single behavior results in the commission of the crime, even though that behavior must occur over time. Therefore, the singular behavior in a continuous crime sets it apart from compound crimes involving multiple behaviors. In the case of habitual crimes, similar criminal behaviors are repeated. Participation in a compound crime is based on collusion; thus, the collaboration and performance of one of the criminal acts by the partners lead to its occurrence. Legally, all partners do not need to engage in all criminal behaviors. If each partner commits one of the criminal behaviors, participation in the compound offense is established. In this scenario, the role of an accomplice also depends on their cooperation in all behaviors or at least in the first behavior by assisting. Therefore, if the accomplice assists and cooperates with the perpetrator in any of the behaviors of the compound crime, their participation is fulfilled. The accomplice is not legally required to cooperate in all the behaviors. Attempting to commit a compound crime is associated with completing the first behavior. The perpetrator performs the first behavior entirely but is prohibited from engaging in the second or subsequent behaviors due to an involuntary factor. It should be noted that the failure to perform the first act should not be considered an attempt. This research employs library sources and analyzes judicial opinions using a descriptive and analytical approach. It has concluded that despite compound crimes' distinct nature and characteristics, which differ significantly from simple and single-behavior crimes, they lack a clear legal position and procedure. The suggestion put forth by this article is that categories related to the behavior of crimes, mainly compound crimes, should be regulated through judicial procedures rather than relying solely on legal articles due to the standard challenges involved.