جستجوی مقالات مرتبط با کلیدواژه « اصل برائت » در نشریات گروه « فقه و حقوق »

One of the strategies to fight the crimes with which the classic criminal legal methods have reached a dead end, and on the other hand, public order, including has disrupted the national and transnational, is the acceptance of the presumption of guilt, which through international documents as an effective criminal policy in It is recommended to deal with organized crimes, especially money laundering. The presumption of guilt in Imami jurisprudence as the main source of legislation in Iran is approved by jurists and jurists On this basis and according to international documents, Iran has been accepted as a legal emirate in the field of combating money laundering. In this research, the presumption of guilt has been investigated based on jurisprudential and legal foundations, and then, in the light of the guidelines of the Palermo Convention, the necessity of legalizing the presumption of guilt in criminal policy has been proven.

One of the rules of jurisprudential and legal education is the principle of judicial protection of individuals, which means that no one is a criminal unless his crime is proved by a court of law، Therefore, the stripping of freedom and the restriction of the rights of individuals is subject to the existence of a definitive argument that the individual is guilty. This principle is so important that many of the basic laws have established this principle in their own constitutions. The Iranian constitution, given the importance of citizenship rights, has also laid the foundation for this principle in principle 3. But lawyers, given the negative effects that some crimes in society cause, are important crimes of the economic world، Safeguards and organized crime have been excluded from this principle and have stated that in these crimes, the criminal is sufficient and can be based on the execution of criminals، it limited some of the freedoms and rights that are created by the principle of innocence for individuals. This article attempts to provide an analytical and descriptive method and, by adhering to the principle of judicial proceedings, a solution in the face of important crimes of Ghana؛ Therefore, this research emphasizes that fish for important crimes of comparison and organization should be analyzed in the context of crimes that lead to the weakening of the Islamic system. In this regard, this article believes that safe and organized crimes are a crime of Baghi and the believer of the people who are recognized in the crime of Baghi، there are also crimes in these crimes. In this case, the confrontation between security forces and law enforcement with the perpetrators of these crimes is in order to establish order and security of your health؛ Therefore, their action is not a judicial act that is the basis for the principle of criminal offence.

Based on the famous opinion of jurists And the majority of lawyers, the first principle in seizures on other property is based on the guarantee possession And all kinds of domination over the people's property have been condemned to liability of unlawful possession and the order of special rules of usurpation considering the pure obedience of the legislator in enacting Articles 301 to 327 of the civil law, accepting the well-known opinion of the jurists in a general or general manner, this extremist view has been seriously criticized by the commentators of the civil law. And basically, the application of the rules of usurpation to non-aggression, in which the basis of possession and domination is based on ignorance of truth and error and lack of malice, is in clear opposition to the principles and rules of justice and fairness and the requirement of the principle innocence. Therefore, in this article an attempt has been made with the help of scattered jurisprudential and legal opinions and related legal materials in order to modify the popular opinion and explain the responsibility of non-aggressors based on the use of other sources of coercive guarantee take a step.

Penal-oriented criminal policy (security-oriented) is a type of criminal policy that focuses more on order and security in society. This type of criminal policy faces challenges in implementation. Human rights standards are among these challenges. In this article, these problems are investigated. The following article is descriptive and analytical and has dealt with the mentioned topic by using the library method. The findings indicate that both from a jurisprudential and legal point of view, the security-oriented criminal policy causes a deviation from the principle of innocence, limiting individual freedoms, violating fair proceedings, creating special courts and intensifying punishments, not paying attention to the material element of the crime. And the use of unconventional evidence in proving the crime is considered a fundamental challenge for human rights standards. This is despite the fact that human rights in the field of criminal law have defined and specific standards that emphasize the protection of individual rights and freedom. The result is that in adopting any criminal law, it is necessary to consider the components and elements of human rights in the field of criminal law. In fact, the positive interaction of criminal policy with the penal system of human rights is a necessary thing, which of course has its own conditions and faces certain problems and limitations.

The bulk of criminal cases and the increase in the criminal and prison population is a fundamental and necessary issue in the criminal justice system, and it has negative social, political, economic, etc. consequences. In order to solve this problem, lawyers have suggested changing the path of less important cases from the path of criminal justice. This research was done with analytical-descriptive method and using library tools. The purpose of this article is to answer the question of what is the position of decriminalization in the criminal policy of Islam and Afghanistan. By following the jurisprudence and criminal law sources of Afghanistan, the conclusion is reached that in the criminal policy of Islam, in the stage of discovery, prosecution of the crime, sentencing and its execution, due to the legislator's importance to the principle of innocence and the emphasis on the forgiveness of the plaintiff, ignoring petty crime, rehabilitation, judgment, etc. have a special place. In the criminal law of Afghanistan, factors such as the passage of time, conditional release, suspension of the execution of the sentence, etc. prevent the criminal case from entering the formal investigation stage and even cause it to leave the judicial process. These mechanisms show the importance of decriminalization in Afghanistan's criminal policy.

Re-prosecution of the accused after the issuance of a restraining order is one of the solutions envisaged by the legislature to ensure justice for persons who did not have access to sufficient reasons or reasons at the time of the trial. The grounds for re-prosecuting the accused are in line with the objectives of the criminal proceedings. These include achieving the Judicial truth, preventing norm-breaking in society. The main source of criminal investigation is the prosecutor's office, so the legislator has made the possibility of re-prosecuting the accused based on Article 278 of the Code of Criminal Procedure in this institution. In some cases, depending on the type of charge, the judicial organization and the personality of the perpetrator, step-by-step investigations are carried out in a source other than the prosecutor's office, and it is possible to issue a restraining order. according to the silence of the legislator, this ambiguity has arisen as to what the procedure of re-prosecution will be if the court issues a restraining order? Depending on the position of the court in Judicial system, if a restraining order is issued by the court at the preliminary investigation stage, it is possible to re-prosecute the accused, but contrary to Article 278, if the restraining order is finalized in a higher authority, there is no need to prescribe a higher authority because the court has independence. It is not like the prosecutor's office.

The principle of acquittal in jurisprudence means acquittal from duty and religion. The acquittal is the abrogation of the right that a person has over another's obligation, in other words, the forfeiture of a fixed right over another's obligation. According to the opinion of jurists, acquittal is a kind of unilateral obligation, and in jurisprudence texts, the doctor was responsible for the loss of the patient or his deficiency, because the loss was the result of his behavior, he intended the act and at the same time did not intend to commit a crime. Therefore, the patient's permission in his treatment does not conflict with the doctor's guarantee. All jurists believe in obtaining acquittal, which Imam Sadiq (a.s.) confirmed this issue by quoting the sayings of Amir al-Mu'minan Ali (a.s.). The legislator's action in granting the right of doctor's discharge to the patient himself or when he is not obligated or unable to discharge, to his religious guardian for the exemption from the guarantee due to his death is contrary to the opinion of the majority of Imamiye jurists. Some jurists have cited "the sovereignty of a person who is obligated to his own life" as a reason to prove the right of the patient to ask the doctor. The present article is written based on an analyticaldescriptive approach and valid library resources and documents, and the hypotheses in the study have been proven.

After the completion of the preliminary investigation, if the investigator deems that the accused is in charge with that crime, he order a summons to the trial against him. If the prosecutor agrees with that, he issues indictment against the accused in order to send the case to court. Article 279 of the Code of Criminal Procedure sets out the items that should inserted in the indictment. Clause "c" of this article states the accused criminal record as one of the items of indictment. However, the judge of the court will need the accused criminal record when he finds him guilty and want to determine appropriate punishment for him. While the accused may be acquitted in court and there is no need to determine a punishment for him at all. In this article, with a descriptive method, while reviewing the possible foundations of the mentioned legislative sentence, it will be explained that because there is no need to inform the judge about the accused criminal record before proving his guilt, inserting that in the indictment and consequently informing the judge from that is contrary to the principle of prohibition of espionage and may violate his privacy. In addition, the judge's knowledge of the accused criminal record before he or she is found guilty also damages the fair trial process and creates a negative prejudice in the mind of judge, which can violate the presumption of innocence and judge’s mental impartiality. At the end, we will provide some suggestions for fixing these problems.

Nowadays, the defense rights of the accused as a balancing component of power in the parties of the criminal case have been more and more noticed by different criminal justice systems. Islamic criminal law includes the principles that guarantee the defense rights of the accused in the best way, and in short, either repels corruption from the accused or provides benefits to him. The findings from the descriptive-analytical study of the defense rights of the accused from the perspective of jurisprudence standards and judicial directives show that despite the standards such as the sanctity of blood, the lack of validity of confessions caused by torture, the legality of representation in all lawsuits, the legality of the defendant's silence against claiming man and rationally proving the necessity of explaining the charge to the accused in Imamiyya jurisprudence, in the judicial directives, the important defense rights of the accused have not been mentioned and special protective provisions have not been made. It is not established to guarantee the said rights. Lack of sufficient attention to guaranteeing the immunity of the accused from acts of torture, the general nature of the provisions governing the right to have a lawyer in the criminal proceedings, the lack of an explicit provision guaranteeing the right of the accused to remain silent, and the lack of a guarantee of sanctions about the right of the accused to explain the accusation are the most important lacks in the judicial directives related to the defendant's defense rights, which of course, in some cases, have legislative roots.

One of the most complex topics in jurisprudence and criminal law is the discussion of the general knowledge of the existence of a crime agent between two or more individuals. It is argued when individuals act independently but simultaneously, similar acts are committed, and the action of one of them, which is not clearly identifiable, commits a crime to a third party. Or they have committed some crimes and others have not acted but the cause of the crime is not definitively established. The Imamiyya jurisprudents suppose that the issue of retribution is ruled out, even where it is a deliberate crime, but the question here is who is responsible for paying the blood money? The present article examines the jurisprudence of the person responsible for the payment of blood money in the crime of killing a person, with a particular view of the issue of equity and the rule of fairness and equity.

The accused should not be considered a criminal at any stage of the trial, and this requires observing the principle of prohibition of unlawful detention of persons and guaranteeing the rights of detainees during the trial and treating them appropriately and with dignity during the trial and detention. The principle is based on freedom, and the arrest of individuals is an exception to this principle. Hence, this exception conflicts with the principle of immunity of citizens from arbitrary arrest or detention, which is rooted in the principle of innocence, and this requires that the legal criteria for the arrest and detention of individuals be precisely defined.

This is a qualitative and applied research in terms of purpose and in terms of collecting information by documentary method and studying international documents, sources related to the subject and the obtained information has been analyzed descriptively-analytically.

In addition to the rights of the interrogation and preliminary investigation, in particular the right to be informed of the charges and the rights of the accused, detainees have the right to be immediately examined by a competent judicial authority to verify the lawfulness of the detention and enjoy other legal rights. And also to protest their legal detention from the beginning of their arrest until their release. Of course, it must be possible to compensate these detainees if their detention is illegal. This is the minimum legal rights of detainees as enshrined in the Code of Criminal Procedure and the Rules and Procedures of Case Courts and the International Criminal Court.

The addition of the clause of "by oath of defendant" in Article 197 C.P.C. (Approved in 1379) raised questions, doubts, and discussions about the possibility or impossibility of issuing a sentence of acquittance of defendant without his oath, in cases of failure to provide evidence and not requesting the oath by the claimant, as well as the power or omission of the judge to swear defendant without asking. The analysis of this article requires the study of the subject in jurisprudence and the study of the viewpoint of the jurists. In jurisprudence, the issuance of verdict in favor of the defendant was not permitted solely on the basis of practical principles, including the principle of innocence, in cases of failure to provide evidence or requesting the oath by the claimant, and also the swearing of the defendant without the applicant's request. In the analysis of Article 197 C.P.C. it is necessary to provide an interpretation that does not contradict this article with jurisprudence and what is known as certain among the jurists.

The principle of acquittal in criminal law plays a fundamental role in defending the rights of the accused, but the absolute nature of the said principle in the face of some crimes such as disciplinary and security crimes is one of the important challenges that is the subject of debate. The purpose of this article is to examine this important question, what is the status of the principle of innocence in security and law enforcement crimes from a jurisprudential and legal point of view? The findings indicate that despite all the interpretations of the original principle of innocence, it is not absolute and unconditional, despite the application of the principle of innocence in criminal matters and its ruling over other principles and rules of criminal law, in certain cases, the application of this principle is avoided. The basis of deviation from the principle of innocence in many cases is the same basis that justifies the rule of the principle of innocence in criminal matters. In this way, the principle of acquittal towards the accused is distorted, and as a result, despite the lack of conclusive evidence, the judge resorts to exceptional methods of proceedings, including obvious cases of resorting to exceptional methods of proceedings in Islamic criminal law can be found in the cases of law and order and public security. As a result, the evidence of guilt takes precedence over the principle of innocence.

In recent years, money-laundering offence has seen a surge in interest from the international community and the national legal systems as an important conduit for financing terrorism. Against this backdrop, FATF has formulated minimum standards and urged the states to comply with them, hoping to prevent and combat money-laundering while at the same time encouraging the countries to criminalize it in their domestic laws. Money-laundering takes place in a diverse variety of ways, and has many particularities. This has deeply troubled judicial authorities engaged in prosecution and proof of the offence. In 2018, the FATF set up an educational workshop to instruct judicial authorities from different countries on the imperative standards in judicial prosecution and proof of money-laundering. It also provided points on the issue of Mens rea and the modification of the principle of innocence and emphasized that proving money-laundering does not depend on proving the primary offence. In addition to explicating the standards mentioned above, this article aims to explore Iran’s legislative-judicial approach to criminal policy by the use of the descriptive-analytical method. It seeks to elucidate the extent to which current practices are in line with these standards, and also shed light on the existing drawbacks and lacunae. To achieve this goal, the principles and the framework of Iran’s criminal policy in Anti-Money Laundering Law adopted in 2008 (amended in 2018) and its executive guidelines, as well as consultative views of the legal department of the judiciary and a number of judgments of the courts of justice are discussed. The article then concludes that Iran’s legislative-judicial criminal policy has adhered to the FATF’s standards in some regards, while defying these standards in other cases, thereby creating drawbacks and lacunae, notably in judicial prosecution of money-laundering.

the rules of ghusl are more sensitive because due to the existence of the major impurity, the interruption in the ghusl also prevents the correctness of ablution (removes the lesser impurity). What is the quality of performing sequential ghusl in terms of arranging the washing of body parts based on valid jurisprudential evidences? How is the quality of performing tartibi ghusl in terms of the order of washing body parts in terms of body washing based on valid jurisprudential reasons? Is the popular theory more consistent with the content of the evidence or the unpopular theory? The research method is critical analysis. Is the popular theory of jurists more consistent with the content of the sources or the unpopular theory? The research method is critical analysis. After explaining the popular and less popular fatwa on the condition of the order of washing the body in ghusl, Jurisprudential sources and their meanings are examined. According to the famous fatwa of the jurists, it is necessary to perform tartibi ghusl in three stages. The whole head should be washed first, then the right side of the body thoroughly and then the left side of the body thoroughly and disruption in this way is detrimental to the correctness of ghusl. Their reason is consensus is narrated fatwa reputation, some hadiths, and the principle is precaution. These reasons can be criticized from different angles based on the contents presented in this article. Based on the application of some hadiths and also with the impairment of citing narrations, consensus and fame and the principle of innocence as a condition of redundancy, the popular theory is that it is sufficient to wash the body after the head and the necessity of arranging between the right and left sides of the body is stronger.

The United Nations Convention against Corruption, which the Islamic Republic of Iran is its member, has criminalized illicit enrichment related to significant increase in assets of public officials which is not consistent with their legitimate income. However, some critics believe that this way of criminalization contradicts to some principles such as presumption of innocence, right to silence, and the principle of legality. Scrutinizing this issue in the Iranian criminal system, this study shows that the elements of illicit enrichment have enough transparency and don't violate the principle of legality. As well, the prediction of the necessity of existence of legal presumptions would resolve the problem of its contradiction to the presumption of innocence. In addition, the unnecessity of proving via self-incrimination would reject any contradictions to the right to silence. As a result, acceptance of illicit enrichment seems to be in accordance with Iranian domestic law.

In Islamic law, in cases of doubt in the presence of the duty and failure to provide evidence of the conduct of the duty, the principle should be based on the absence of the duty and thus not imposing a responsibility on individuals. In the legal term, this principle is based on the requirements of judicial justice and supports the freedom and dignity of individuals. The extent of the principle of innocence is very wide and inclusive than Islamic law but the commonality of this principle in both areas is alesalat ol adam. This article, using a descriptive-analytical method and using library sources, seeks to answer this question: What is place and guarantees of the principle of innocence in Islamic and public law and in the judgments of Administrative Justice Court? Conclusion of this article is that the principle of innocence and its guarantees, as referred to in criminal law, in the field of public law has not been cited by the administrative proceedings authorities and a number of branches of the Administrative Justice Court, in judicial controlling of quasi-criminal administrative bodies, have referred to the guarantees of the principle of innocence and have considered them as one of the principles of fair administrative hearing. According to this principle, one cannot be held accountable or be restricted his freedom without giving any reason; An approach that if pursued extensively and severely by all branches of the administrative Justice Court can improve the performance of administrative authorities and quasi-criminal administrative bodies.

The principles and rules of fair trial as a part of procedural law and human rights established for protecting and guaranteeing the substantive rights that are recognized in the international and national laws and documents. This law so called fair proceeding principles is rooted in human dignity and should be protected by the governments. Administrating the justice, the aim of each proceeding, isn't possible without establishing a fair trial in which rights and freedom of accused person and other people involved in proceeding process are respected. Fulfilling the right of questioning of the judicial system from the person based on the presumption of knowing him “moral agent” causes him to be summoned for criminal investigation. This summons requires that the criminal charge be explained to him in a detail and clear, unambiguous and comprehensible language, and not that the charge be stated and that the criminal title and the relevant article be only read to him. Relying on the defenses of the suspect or accused and assessing their credibility and value depends on the fact that he has a good understanding of what he is accused of. In order to prevent the nature of the summons or detention from changing into an illegal and unjustified act, the charge must be clearly and completely arraigned to him as soon as possible, by stating the reason for his summons or arrest, and his judicial rights must be reminded to him. In the meantime, if the accused is not aware of the language of the summoning authorities, he has the right to use a free interpreter to defend himself in all respects. Fulfilling arraignment and its elements and characteristics on the presumption of knowing the suspect or accused “moral agent” and also on the principle of innocence, as well as the important effects and consequences of guaranteeing this right in order to achieve a fair trial, has caused international human beings, both general and specific, as well as in domestic laws of countries to be specified and emphasized and their implementation to be ensured by the judicial systems of governments. This article examines the arraignment in the judicial proceeding of the European Court of Human Rights by comparing it with its place in Iranian criminal procedure. The main question of this study is “how was guaranteed the right of arraignment as one of the essential rights of defendant by European Court of Human Rights and Criminal Procedure Act of Iran? The European Convention on Human Rights, as a continental treaty, recognizes arraignment as one of the most important principles of criminal procedure and has obliged member governments to fully implement it. The European Court of Human Rights, as the judicial body of this convention, in its procedure, has acted with great obsession on the most detailed rights of litigants, especially arraigning the accused, and has precise and thought-provoking rulings, as far as it can be claimed that all conceivable rights for litigants in the litigation process, is carefully and strictly considered by the Court. In this regard, the full attention of the court to the principle of arraigning the accused in its judicial procedures, including attention to the concept and nature of the arraignment, its promptness and completeness, as well as attention to the accused in terms of familiarity with the language of the accusation and consequently getting a free translator familiar with legal issues to inform arraign who are unfamiliar with the language of the accusation in charge, has resulted in a fair trial, especially from the outset, to be under the strict control of a district judicial body whose order are of high executive guarantee. The court, with full seriousness in this case, has tried to guarantee this important principle of the trial as much as possible so that the most important right of the accused is not violated. On the other hand, in the Iranian criminal law system, the Code of Criminal Procedure, in order to protect the defense rights of the accused, has identified, emphasized and guaranteed the principles of the trial, including the arraignment. However, this right has not been fully identified and defined in such a way that the detailed accusation has been replaced by explicit arraignment and the right to have a “free” translator has not been provided for the accused. Having a translator free of charge is a guarantee for a fuller arraignment, not merely identifying the right to have a translator. An accused who is unable to pay for the translator may be practically deprived of this right. It seems that the drafters of this Act did not pay enough attention to the close connection between the right to have a translator and the right to be arraigned, otherwise all the stages of the investigation, including the investigation of the officers and the prosecutor’s office and the court, would not be neglected. Paying attention to the procedures of international criminal institutions, including the above-mentioned Court, and in particular the principles on the basis of which the Court obliges member states to compensate damages to defendants or convicts and considers the actions of those countries in violation of the Convention to understand the importance of this right in all procedures are required. It seems that in addition to reforming criminal laws and regulations, basic education of these important rights and also further guaranteeing this right during the trial, including through, can be very effective in eliminating the shortcomings in Iranian criminal law.