فهرست مطالب مهری برزگر

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 Iranian laws are silent on the ruling of consent of the victim on bodily harms and it has often been claimed that it has no effect. However, in Germany Article 228 of StGB bars punishment of the actor in cases of consent of the victim, provided that it would not be against common decency. From legislative foundations perspective, the approach towards consent might be based on one of the harm, paternalism or legal moralism principles, the ineffectiveness of it being based upon the harm principle and the German Approach being based upon paternalism. In Germany, plus full consent, hypothetical and presumed consent are treated as full consent, while in the Iranian law these instances are justified via the rules of necessity. Some examples of consent of the victim on bodily harm from non-physicians include medical and semi-medical operations such as circumcision and tattooing, illegal sports and sexual masochistic acts. According to the German law, if all conditions being present, consent dissolves the second element of crime (Rechtswridigkeit) and the actor will have no civil responsibility. In Iran, there is no specific ruling, however considering the general rules consent of the victim will have no influence on Ta’zir. Speaking of Qisas and Diya, it has been claimed that most Islamic jurists believe that it will dissolve both of them. It is recommendable that the Iranian Law adopts an explicit point of view on consent on bodily harm. In some dimensions like tattooing, regulating and in some other dimensions like mutilation, explicit criminalization would be a proper criminal policy.

In the last two decades concepts such as prediction of crime and predictive police have emerged. Among place-based methods of prediction of crime, the near-repeat method, inspired by epidemics and earthquakes, has shown great efficiency. Based on the committed crime, it is forecasted that in a near place and time another crime will be committed. This method has been practically examined in three German cities in the so-called Precobs project, Malmö in Sweden, Chicago and many other USA, UK, Australia and New Zealand cities. The application of it in Iran confronts the obstacle of secrecy of the criminal statistics and reluctance towards change and requires technical and human fundamental preparations. Technical foundations include producing indigenous software, justifying the operators and holding classes. Human foundations consist of honoring Law enforcement, plus sufficient training and dignifying the actual and potential victims. Applying this method, paired with the participation of citizens in reporting crimes and better self-protection will contribute to targeted prevention and reduction of burglary rate. The article tries to respond to the question if the near-repeat method, considering the limitations, can be applied in Iran and how the obstacles can be prevailed through proper foundations.

The Act of Reduction of the Ta’zir Imprisonment Punishments (2020) has adopted minimalistic attitude regarding imprisonment. Prison overcrowding, which is a result of increment in prison population and incarceration policies has increased the costs of custody of inmates and led to crisis in the management of prisons. Meanwhile, The Act of Reduction has sought to reach criminal minimalism and decarcerate prison population by reducing the imprisonment of some criminal offences such as kidnapping, making lots of others like defalcation, forgery in unofficial documents, fraud, and some cases of theft forgivable and shrinking the minimum and maximum of the imprisonment to half. However, precipitancy in codification of this Act and extreme attitude towards decarceration has marginalized the moral attraction of law and justice, leading to the creation of the presumption of commodification of punishments and has developed the atmosphere of bargaining to resolve disputes which would undermine deterrence of the punishments. 

The Act of Reduction of the Ta’zir Imprisonment Punishments (2020) implementing fundamental amendments in the Islamic Penal Code (2013) has adopted minimalistic attitude towards punishments and specifically imprisonment. Prison overcrowding, which is a result of increment in prison population and incarceration policies has increased the costs of custody of inmates and led to crisis in the management of prisons. Meanwhile, The Act of Reduction has sought to reach criminal minimalism and decarcerate prisons’ population by reducing the imprisonment of some criminal offenses such as kidnapping and making many others including defalcation, fraud and specific sorts of theft with definite value forgivable and shrinking the minimum and maximum of the imprisonment to half in 4th til 8th degree T’azir punishments and facilitating the application of mitigating factors. Accordingly, the rules on plurality of the crime and recidivism have been completely evolved and the discretion of the courts in aggravating the punishment in cases of plurality and recidivism has been restricted. The Motto of the Act is that the experiment of imprisonment and the maximized use of it have been unsuccessful in providing the goals of the legislature and controlling criminality and therefore revising the old policies is an unavoidable necessity. 

The methodology of the article is descriptive-analytical approach which has accomplished research on various literatures in criminal sciences (including books and articles) and the articles of the Act of Reduction of the Ta’zir Imprisonment Punishments and analyzed them.

The perspective of the Act of Reduction of the Ta’zir Imprisonment Punishments shows the insight towards decarceration is not an outcome of criminological or penological studies on the harmful consequences of prison and is in fact free of liberal approaches towards imprisonment. The enactment of the Act shortly after the enactment of the Act on Aggravating the Punishment of Pouring Acid and the Protection of the Victims (2020) which has considerably increased imprisonment and has prohibits the application of mitigating factors from the court and repealing of some articles of the aforementioned Act such as accelerating in crime according to the Act of Reduction depict a kind of chaos in the management of criminal policy making in Iran which on the one hand, tends to increase imprisonment and on the other hand, contemplates diminishing and decarcerating. Also, the enactment of the Act on Protection of the Juveniles (2020), which has unconventionally Increased the imprisonment even in unintentional offences, is another instance of such chaos. Indeed, three acts which were enacted shortly after each other, rival each other in approaches and attitudes of the legislatures, the reason being lack of a fixed expertise board in legislating, the main calamity in the legislation in Iran.precipitancy in codification of this Act, the lack of criminological and penological basis, extreme attitude towards decarceration paired with tendency towards financial punishments such as fines has marginalized the moral attraction of law and justice, leading to the creation of the presumption of commodification of punishments and has developed the atmosphere of bargaining to resolve disputes which would undermine deterrence of the punishments. Certainly, decriminalization and depenalization would be preferable to resolutions such as making the Ta’zir punishments forgivable and nonstandard decreasing them. Granting a vast authority to courts in order to mitigate criminal sanctions even in cases of plurality or recidivism, in which aggravating the punishment is mandatory, is ponderable and would practically confront the judges with the accusation of bias and nonconformity with neutrality.

The appropriate resolution to mitigate the problematic of the Act of Reduction would be revising it and omitting decreasing rules such as irregular halving the imprisonment and the mitigating institutions. The Act has been enacted without sufficient scientific studies just in order to decarcerate and lighten the burden of the justice system. It would be neither deterrent nor just in the current state and the criminal statistics show an increase in street crimes like theft and snatching after coming the Act into force which demonstrate the Act is unable to guarantee the general goals of the punishments including dispensing justice, protecting of the rights of victims, rehabilitating the offender and preventing the crime. 

Prediction of recidivism is a part of criminological studies which has many functions in juristic decision about the convicted. One of the most important decisions deals with parole,which is based on the hypothesis that the convicted will have a due attitude during his conviction and will not commit any criminal offense after early release from prison.
Several studies have been conducted about such clause which might be divided into three generations: First generation methods that were mostly inuitional and clinical, second generation methods, which included clinical methods, improved by actuarial studies and static actuarial methods and third generation methods which considered risk/need and static/dynamic factors. Hence, standard tables like SFS and LSI-R are provided which are applied in order to grant parole.
In Iran, according to second clause of Article 58 of Islamic Penal Code (enacted in 1392) and its precedence in older criminal codes, prediction of non-commission of crime is one of conditions of granting parole which is a legal context to apply prediction studies in parole.Yet, juridical context is not provided. Exact definition of factors needs a longitudinal research with regard to successful studies in other countries and localizing them.

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.

Media panic, and its concomitant fear of crime, is a crucial variable in outlining crime policy. The present study attempts to investigate the impacts of media, fear of crime, and penal populism on public execution of those sentenced to death penalty. For this purpose, the authors focused on the murder of Ruhollah Dadashi, a popular athlete on the media, in order to test the study variables. The statistical population of this field study consisted of 225 citizens of Tehran, and the study was carried out over a two-month period starting from October 2011. Our findings indicated that the fear of murder among the respondents was at a lower level compared to fear of other crimes they were asked about (e.g. burglary, rape, assault and battery, reckless driving accidents, pickpocketing and snatching, slander, or being offended or harassed). In addition, punitiveness of respondents toward premeditated murder was much greater than their punitiveness toward non-premeditated murder. It should also be noted that despite the respondents’ rejection of the idea of public execution and their negative view on death penalty for those who are under the age of 20, the respondents were totally satisfied with the public execution of Ruhollah’s Dadashi’s murderer, who was under 18. The inconsistency appears to have stemmed from the media portrayal of the victim as well as the representation of the offender as a “bad guy” or a “hoodlum”, which inevitably resulted in intensified penal populism in sentencing and publicly executing the offender.