نشریه آموزه های حقوق کیفری
پیاپی 25 (بهار و تابستان 1402)

Iranian National Tax Administration (INTA) made the prosecution of tax crimes subject to the implementation of the internal bylaws (by-law or code of conduct) of the implementation of article 274 of the Direct Tax Code in 2018. Accordingly, the prosecuting of these crimes requires a complaint by the Tax Administration after obtaining a favorable opinion of the Tax Crimes Task Force (TFTC). In fact, the authority of the prosecutor’s office in evaluating the prosecution is limited and, in some way, limited to the previous assessment and opinion of the tax office. The by-law simulates the “Commission on Tax Crimes” in French law which was approved and enacted by the French parliament nearly half a century ago. One of the justifications for establishing this mechanism is the principle of proportionality in prosecution according to which only severe tax fraud cases are pursued in the criminal authorities (institutes) after the administrative process in the tax administration and lack of results. This policy of selecting severe cases is in line with the thought of criminal response deterrence and public prevention. In fact, the tax administration prefers to respond to failure to fulfill tax obligations with administrative-financial reactive responses and allocate criminal responses to severe tax frauds and fraudulent design. This mechanism definitely faced serious reforms in 2018. Unlike French law, which both the anticipation of the Tax Crimes Commission and its reforms, aimed at clarification, were made by the Parliament, in Iran, the by-law is approved by the Tax Administration and not the legislature.

There are conditions for qiṣāṣ (Arabic: قصاص, lit. 'accountability, following up after, pursuing or prosecuting') in the Islamic Penal Code that cannot be applied without their gathering, despite the fact that murder is carried out. The equality of the murderer and the victim in religion is one of these conditions, according to which the Muslim murderer does not have qiṣāṣ against the Kāfir (infidel) victim. One of the subgroups of the above condition and the challenging issue in this regard is the conversion of the Kāfir (infidel) murderer after the murder of the Kāfir whose life and safety is protected by the law whether his conversion to Islam after committing the crime will lead to the termination of qiṣāṣ or is qiṣāṣ proved due to his disbelief during the crime and is proven its existence according to the principle of continuity (Arabic: اصل الاستصحاب)? Sunnite jurists have mainly considered qiṣāṣ by basing the state of murderer during the crime and in contrast, Shiite jurists have chosen not to execute qiṣāṣ against murderer based on specific proofs to determine the state of murderer during qiṣāṣ execution. The authors after searching in jurisprudential and legal books and examining the issue by analytical-documentary method concluded that although the requirement of the rule in the question under researching is the realization of qiṣāṣ, but qiṣāṣ against a Muslim for a Kāfir due to the existence of specific evidences is absolutely prohibited.

One of the remarkable institutions of Islamic criminal jurisprudence, which causes the active presence of the accused and the criminal, in the field of determining the judicial fate and eliminating criminal proceedings, is repentance, which is systematically reflected in the Islamic Penal Code of 2012. However, using the maximum capacity of repentance requires an institution called "Estaba" (official offer of repentance to the accused or criminal), which has been used in the criminal policy of Imam Ali (a.s.) in various crimes. Based on the results of this article, Istaba as a sovereign task is based on anthropological, political and social, moral and criminalistic elements and has various functions such as decriminalization, guidance, correction, dignity-oriented and psychological. In addition to this, in the criminal policy of Imam Ali (a.s.) it has been implemented in financial, ideological and non-victim crimes, but it is possible to extend it to all crimes in which repentance is prescribed and also as one of the conditions for the criminal to benefit from reconciliation institutions. There are criminal and post-criminal protections.

Realization of justice in international criminal proceedings requires objective criteria and standards due to the multilingual nature of this process. The right to a fair trial includes a number of technicalities (procedurals) designed for the criminal justice process as an umbrella guarantee. Some aspects of this guarantee are directly related to the language. Language is both a means of doing justice for all the rights of the accused (prosecute claim) and one of the criteria for the realization of a procedural justice by providing free interpreter assistance in situations where the accused does not understand or cannot speak the working language of the court. The right for having an interpreter for such defendants is recognized both as a conventional international rule and is visible in the statutes of the International Criminal Courts, but the mere expression of this right without proper and practical application does not guarantee the right to be respected in international proceedings. Therefore, the question that is raised is what role does language and interpreter as a communication factor play in realizing a fair trial in the international criminal justice system that is full of multilingual proceedings. The author believes by following the legal doctrines, documents and judgments of international criminal courts that the right of a defendant who does not speak the working language of the court to have an interpreter is not only closely related to all the principles of fair trial and defense rights of the accused, but in fact, failure to observe this right can mean a violation of other formal principles in the trial. The logic of this right lies in effective communication by enabling the accused in order to protect the accused against arbitrariness and the minimum guarantees of a fair trial, especially where the trial is conducted in more than one language which has provided a hopeful structure for prosecuting claim of linguistic rights in criminal proceedings.

Domestic violence or abuse of women has exposed victims to serious risks as a pervasive phenomenon around the world. The latter judicial strategies are not effective in confronting domestic violence due to the lack of criminalization of different types of violence or the lack of reporting it due to the existence of a family relationship between the abuser and the victim, and therefore, secondary victimization of victims is also a result. Therefore, previous supportive and preventive solutions are relevant. Victims suffer severe forms of domestic violence and sometimes lose their lives. They also sometimes resort to passive interaction such as suicide or pseudo-suicide due to psychological pressure caused by misbehavior. Violence or sexual misconduct in its various forms also causes risks for women. Efforts to integrate and create a single window of support services for women are on the agenda in the new bill under consideration in the legislature of Islamic republic of Iran with the priority of protective and preventive measures over criminal measures which are discussed in this article under the title of emergency support, collaborative support and restorative support and economic and cultural support. The use of international experience and the elimination of challenges in the passage of this bill and the application of its protective and preventive mechanisms can help the effectiveness of criminal policy in this regard and reduce damages.

Lenient institutions, which encompass a wide range of exempting and mitigating provisions have a long history of playing a role in Iran’s criminal policy. The tendency towards these institutions in recent years due to the overcrowding of the criminal population and the difficulties of the prison administration has accelerated after the enactment of the Law of Commuting Sentences of Taʿzīr Imprisonment (2020) and a large number of crimes were subjected and included to these regulations with new developments that in the past did not include commutation or suspension or probation or electronic monitoring. Inflicting and imposing aggravating circumstances of punishment such as plurality and recidivism of the crime will not prevent resorting to lenient institutions. The increasement of these institutions and their diversity which sometimes conflict with each other and especially the conditions for having them based on general and subjective propositions have disrupted the coherence and efficiency of the criminal policy. In addition, most of the lenient institutions are optional and subjected to the discretion and opinions of judicial authorities and the confirmation and ascertainment of the mandatory cases are done by the judge. The lack of guiding principles for resorting to these institutions in practice has caused the diversity of perceptions of the law and adoption of different procedures and it has made their application unpredictable. Reducing the lenient institutions that are conflicting with or limiting them to a specific area of judicial process, eliminating ambiguous conditions and predicting objective and manageable propositions as well as limiting judicial discretions can affect the cohesion and effectiveness (efficiency) of the institutions of lenient.

Macroeconomic organized and systematic crimes such as money laundering require an organized and coordinated response to its type. The Financial Action Task Force (FATF) as the most specialized organization in this area of crime has proposed one of the ways to deal with the mentioned crimes through the components of the system of expropriation (confiscation) and also temporary measures under the recommendation of the optimal performance document (records) for confiscation as well as the guidance document of judges and prosecutors. We will examine in this study what are the fundamentals of the expanding confiscation system? What are the components and types of this expanding confiscation system from the perspective of the Financial Action Task Force? How are the components of the extended confiscation system reflected in Iran’s legal system? And what requirements must the confiscation system in Iranian law be enjoyed in accordance with the requirements of the Financial Action Task Force (FATF)’s extended confiscation system? The globalization of crime and the desperation of criminal justice system are the most important foundations for the emergence of the expanding confiscation system. The “crimes of particular origin and source (criminal lifestyle),” “legal assumptions,” “mitigating substantive proofs” and “litigation exchanging” form four components of the system of expropriation in reviewing the documents of the Financial Action Task Force. The mentioned components can be different depending on the type of confiscation. Extended confiscation (expanding confiscation) is divided into three types: criminal extended confiscation, civil extended confiscation and administrative extended confiscation. In Iran’s legal system, the “law related to dealing with the property of ministers and employees Act 1959,” “the anti-money laundering (amendment) act 2017” and the “Law of Adding Articles to the Law on How to Implement Article 49 Act 2020” which are the closest system of extended confiscation to the system of confiscation can be seen. The most important damages of the legal system governing the extended confiscation in Iran, in accordance with the standards of the FATF can include: 1) lack of prediction of administrative extended confiscation, 2) absence of the components of the crimes of particular origin and source (criminal lifestyle) and legal assumptions in the detailed criminal confiscation, 3) ambiguity in the standards of the “Principle of Equality of Arms” and 4) and ambiguity in the litigation exchanging criterion and mitigating substantive proofs. It should be noted that this research is done by descriptive-analytical method and library method is used in collecting resources.

Most legal systems in the light of international instruments, especially the International Convention on the Rights of the Child (1989) adopt a protective approach in their criminal policy about children and youths, victims of sexual offenses. “Criminal protection” of Juvenile victims is a one of the tools of criminal policy about the sexual crimes against children. This criminal protection is important since it emphasizes the psychological reconstruction of juveniles. Two criminal policy tools in criminal protection, i.e., the mechanism of “criminalization” and the mechanism of “aggravating circumstance” are observed in most legal systems to protect children against such crimes. In this article, through the comparative study of three quite different legal systems, i.e. Iran, Canada and France, on the question of sexual offenses against children and adolescents, we notice the importance placed on the protection of youths in this criminal policy. However, we analyze the differences between these three legal systems on the objective and subjective elements of the aggravating circumstances for such offenses. This study can be more effective in the adoption and application of more comprehensive acts to protect children and youth against such crimes.

Punishment and power are in a process of reciprocal interaction as two social institutions derived from human behavior. Power determines punishment and punishment determines the scope of power in this two-way interaction. Political power has the legislator as the determining institution of the punishment, so it has a high level of intervention in determining the criminal response. However, there are psychological factors that lead society to demand these reactions from a superior. Delegating the duty of the determining of the punishment to the legislator requires a chain of previous causes. Most of these factors go back to the innate of person and human’s nature react seeking and the other part is external factors that increase his/her tendency to suppress the guilty person. But how does this chain of factors play its role? The current research tries to examine the underlying factors of the demand for criminal response which have an internal origin and arise from human nature, in addition to examining the exercise of power established in punishment.

The commutation of violent corporal punishment is a process that in most countries has taken place or is taking place. Afghanistan is not an exception to this rule and there have been many changes regarding corporal punishments during the last half century. These evolutions are influenced by many factors of which cultural-social changes are considered as one of the most important factors of them. The current research was conducted with the aim of investigating the evolution of corporal punishments in Afghanistan and tried to provide an answer to the question of how this process can be analyzed from the perspective of cultural sociology. The factors, contexts and the impact of cultural changes on the changes in corporal punishment have been investigated using analytical-descriptive research method in this research. Historical reports of corporal punishments are first described for this purpose and then how the process of transformation and transition from corporal punishment to disciplinary punishment is examined. The results indicate that one of the important reasons for the changes in the corporal punishment reactions in the society of Afghanistan is the passage from a monocultural structure based on traditional tribal-religious norms to cultural polymorphism. The apparent and material symbol of this cultural transformation is the practical elimination of whipping (flogging) and the commutation of the punishment of taʿzīr (Arabic: تعزیر, discretionary) of death penalty. In addition, the changes in the political structure have also played a positive role in providing the context for this cultural change.

The political events of 1320 Solar Hijri have had obvious effects on Iran’s legislative penal policy. The present research has no hypothesis based on grounded theory and exploratory nature and this research raises this fundamental question by applying descriptive-analytic method and deep analysis and reflection on the events and documents and laws of this decade of what extent has been the role of political events in the type of rebellion, assassination of authorities, political conflict and coup in Iran’s legislative penal policy? The findings show that these aforementioned political events had profound effects on Iran’s legislative penal policy and the parliament and the judicial system against the events that caused people’s concern or damage to security which have been affected by populism or security orientation surrendered to public opinion, pressure groups and governmental authorities. But the convergence with various political and religious forces and the utilization of elites and civil society, the rejection of the urgency of the enactment of the law involving criminalization and penalization and respect for the constitution and disagreement of the parliament to penal extra or sub-legislative approvals (acts) that are opposed with the rights of the nation and the competence of the legislative power helps to be rational and well-considered legislative penal policy.

Vehicular searches at the checkpoints and police stations are the best examples of the conflict between the practical procedures of police with law-based investigations. The present study tries to analyze, justify and explain the conflict between police procedure and law-based investigations by focusing on criminal statistics, judgments of criminal tribunals and police guidelines and etc. and identify the existing gaps and ultimately solve the problem. The present research is a descriptive-analytic method and by using a library tool is trying to answer the question whether current procedure of officers in the field of vehicle search is in accordance with legal regulations and rules. Officers in flagrant offences have many powers in the field of searching and warrant of arrest (warrant of commitment of persons) and objects but they do not have these powers in non-flagrant offences and only have the duty to inform the prosecutor. Officers cannot search for unseen parts of the vehicle without (without a warrant or probable cause) prosecution authority’s prior order and strong conjecture of a crime occurrence. Delegating more powers to officers through strong conjecture (UK), separating the vehicles from general regulations of inspection and search of places and means (France) and more effective use of oral order (Article 34 of Code of Criminal Procedure) are among the solutions that can be presented in order to address the current challenge from a comparative perspective, but until the amendment of the law, the existing disciplinary procedure is against the principle of the legality of criminal proceedings and citizenship rights and the initiated criminal prosecution must be abated (the interruption of a legal proceeding).