جستجوی مقالات مرتبط با کلیدواژه "کیفردهی" در نشریات گروه "فقه و حقوق"

Each country has a determined response system for committing a crime. And in the Islamic Penal Code, the punishment for committing a crime is explicitly stated in Article 122. Indeed, this action helps to the coherence of the rulings. However, despite this positive approach, this system has faced gaps in crimes with multiple punishments and has presented problems to judges; For example, in a crime such as combat, which has diverse and facultative penalties, It is not clear based on which paragraph of Article 122 of the Islamic Penal Code the judge should determine the punishment at the beginning of this crime. Penalties prescribed for combat do not fit into any of the mentioned articles, such as negation. There are different perspectives to address this issue. These notions can be divided into three main approaches, encompassing the judge's discretion that is the criterion for imposing the most severe or mild legal punishment. Examination of the existing opinions shows that the application of each will have advantages and disadvantages. In this article, we have studied and analyzed these approaches through the interpretative analytical method. Thus, in crimes that the trial took the legislature of any crimes, this discretion is also true at the beginning. However, in order for judges to be less likely to issue dissenting verdicts, they should pay attention to the type of crime committed and the policy that is enacted from the set of criminal rules governing those crimes.

Determining the criminal reaction to the crime is the most important stages of the criminal procedure. In such a way that the improper performance of the criminal justice system at this stage not only causes waste of money, but also provides the basis for public distrust towards the legitimacy of the judicial system and fails the judicial system in achieving its goals. Considering the wide scope of Ta'ziri compared to other punishments, paying attention to the regulation finds a special place. Criminal regulation is the movement from mere punitive responses in response to crimes, to regulating the problem in each case; In such a way the type of punishment depends on the type of crime, the character of the criminal and his readiness to accept his guilt and responsibility for damages caused by his crime, the presence or absence of the victim and attention to his requests if any, the amount of damage that occurs as a result The crime has entered the public order and other characteristics related to the criminal phenomenon can be changed. The history of punishment in Iran's procedure indicates that due to the lack of use of the concept of regulate In the creation of limitations for the judge in this regard, there is no specific model regarding the process of determining the appropriate punishment. the evaluation criteria are not detailed. In this study, while analyzing the concept of regulation, the feasibility of its application with Sharia principles such as the rule of al-Tazir with the guidance of al-Hakim, the rule of permission in the object, etc., in order to implement it in the criminal system and finally predict the independent center of punishment regulation

Release from prison policy in the light of the legal changes of the institution of mitigation of punishment in the law of reducing the punishment of taaziri imprisonment and its comparative comparison with the law of England Following the imposition of imprisonment and the development of the policy of " Prisonerism " and the emergence of its harms, "" Release from prison "" was gradually included in the criminal policy program of countries and left effects that pay attention to the role of benevolent institutions such as "mitigation of punishment". The title is a tool for detente. It is such While the developments of Iran's criminal policy regarding the institution of mitigation of punishment as a tool to control the criminal population, regardless of the process of " Prisoneris in criminal legislation" with manifestations of extremism in the development or narrowing of the scope of crimes and the powers of the Judicial authority, The UK criminal law defines the dual policy of "reducing the criminal population - criminal prevention" and defining the criteria for determining imprisonment as the most severe punishment in this country,

Cultural heritage has always been an attractive target for achieving the economic, religious and political goals of organized criminals and terrorists in internal, regional and international armed conflicts, so supporting this heritage considering that at the international level It is respected by the world and human society, it has always been a matter of consensus, approval and emphasis, and this support, although incomplete, has been reflected in various legal and judicial, political and ideological dimensions. One of the influential institutions that has an effective capacity to support these works at the international level is the International Criminal Court. Although the possibility of filing lawsuits involving the protection of world cultural heritage in the court is not explicitly mentioned, but the review of the existing procedure confirms the jurisdiction of the court in dealing with these issues. One of the important cases in this regard is reflected in the lawsuit of the court prosecutor against Al-Mahdi, which investigation will be the desired military organizer including the goals and effective components in punishing the perpetrators of crimes against cultural heritage. This article seeks to explain the objectives and effective components in punishing perpetrators of crimes against cultural heritage in the International Criminal Court and states that due to the lack of a uniform punishment model in the court’s procedure, the efficient protection of cultural heritage relies on the traditional goals of punishment. Such as punishment, rehabilitation and deterrence are not enough, and other goals such as restoration and revival of historical and cultural monuments and compensation for the emotional pain of the victims who have a historical and religious connection with these places, are more important than the traditional aspect of the goals of punishment, and the criminal punishment system should be based on be organized on these issue.

The tendency of Iran's criminal policy and consequently its criminal policy is to reduce imprisonment and the prison population. In other words, Iran's key priorities are to reduce the dominance of imprisonment. Accordingly, the legislative and judicial approach seeks the release of imprisonment and the use of compassionate and alternative institutions. Hence, the dream of deprivation of liberty has become the main goal of criminal policy today, and the predictions of compassionate institutions and the approach of the law to reduce the punishment of imprisonment confirm this approach. However, despite the move towards deprivation of liberty, it is important to keep this approach in line with the issue of deterrence and impunity or the purpose of punishment. Because with the reduction of punishments, the deterrent power of punishment also decreases. This article concludes that reducing the prison sentence without the development of a culture of legalism and attention to other factors affecting the increase in crime will not be possible to reduce the prison population. Therefore, the result of the law reducing the punishment of imprisonment, approved in 1399, is to reduce the deterrent power of punishment and help impunity for criminals. On the other hand, it has little effect on reducing the prison population. Because the production of crime and imprisonment is not the only result of long punishments that reduce the criminal population to achieve the desired result. Rather, the main components of crime and attention to alternatives to imprisonment should be considered.

In different societies' political and public discourse, foreigners are considered to be responsible for drug offenses and make up a significant part of the criminal population of drugs offenses. Through theories like focal concerns, villain/ victim,  in-group favoritism, and theory of ethnic threat, the present study examines the effect of the offender's nationality on sentencing and its severity in the practice of courts. In this regard, qualitative research methods have been used. In-depth interviews with judicial activists, drug lawyers, and officers of  Drug Control Headquarters (15 cases) were used. The content of documents, including cases of drug offenses conviction (20 cases) and national courts verdicts about drug offenses of foreigners have been analyzed. The Findings show that through over-policing, immigrants (especially from the origin country of drugs or with low socio-economic status) are at the criminal justice system's focus. In addition, media representation of immigrants' crimes and its impact on public opinion and violation of the rules of hospitality by foreign offenders has led to immigrants being more blamable. finally, the lack of access to effective legal protection in the criminal justice system has provided grounds for discrimination against this group.

The legitimacy and acceptability of punishment is dependent on the legitimacy of its constructive political structures. To legitimize the political structures, we need the rule of law. Governments acting according to law consider rationality as a measure of legitimacy and credit the values and moral, social, and cultural norms of society. In modern governments based on wisdom, the principle of preserving the natural rights of humans and freedom has been established on reason. Citizens have the right to protest against it when governments fail to do their duty in protecting citizens’ freedoms. The principle of the right of states to punish, the basis and its principled structure and its effects, are the questions of the present study which has been carried out in descriptive-analytic mode. The right of citizens to rehabilitation and justice desert, as well as the rights of citizens to civil disobedience, and the right not to be punished are the results of the application of the rational-based right to punishment. The consequences of rational punishment are the mitigation and humanization of punishment and providing reasonable benefits to victims, criminals, and citizens.

Sentencing studies indicate that female offenders typically receive less severe punishments than males and that the criminal justice system treats women more leniently than men. The current study, through theories such as paternalism (and its more recent versions) and evil woman theory, seeks to answer how gender as an extralegal factor affects the process of sentencing in drug offences and whether there is a difference in the effectiveness of theories depending on the social structure of the two societies, Iran and the United States.In this study, qualitative research methods have been used. The content of documents, including cases of drug offences conviction (60 samples) between 2010 and 2020, and criminal justice officials’ discourse have been analyzed. In-depth interviews with judicial activists and drug lawyers (24 cases) were also used to understand the factors that encourage judges to impose lenient or severe punishments on women.The findings of this study show that paternalistic attitudes toward women in Iranian society, Childcare, the social costs of punishing mothers, and the subordination of the partner are the main factors that reduce the likelihood of conviction of harsh sentences, such as the death penalty for women in Iran. On the other hand, criminal records in drug offences, high quantity of drugs, or illegal relationships are factors that lead to violations of gender norms and deprivation of women of leniency approach in the criminal justice system about drug offences.

Article 59 of the Iranian Constitution mentions the possibility of refer to popular vote through referendum on very important issues. One of the examples of this direct legislation is to enact laws about crimes and punishments; until today, the Iranian legal system has not referred to the referendum in general and to the legislative referendum in criminal matters in particular. It may be argued that given the impact of Islam on some crimes and punishments in Iran, Basically, referring to the opinions of the people on the mentioned issues should have a religious restriction. However, governments like Italy have used legislative referendums about criminal issues; according to Article 75 of the Italian Constitution, a referendum can repeal a parliamentary law, and this rule has been implemented at various times, even in criminal policy. In this study, using a descriptive-analytical method and after examining the principles of referring to public opinion in criminal matters from an Islamic perspective and presenting the features related to the Iranian and Italian systems, we will reach the conclusion that holding a referendum to determine criminal policy in Iran, provided that certain conditions are respected, not only has no legal and religious prohibition, but getting ideas from the Italian procedure can be considered a significant help in achieving the following issues: Improving the quality of governance of the Islamic Republic, increasing the level of mutual trust between people and the rulers and finally adapting the situation of crimes and punishments to the current concerns of society. This does not mean that the state should not monitor the implementation of referendums to avoid non-rational decisions by the people.

A review of criminal law clearly reveals that in Iran's legal system, there is no particular logic of penalization, and in these laws, many inappropriate penalties exist in terms of type, degree and inefficiency in achieving the goals. Cliché and irregular punishments not only result in failure to meet the goals of punishment, but leads to undesirable and adverse effects on the perpetrator. Determining the appropriate punishment and the optimum level of efficiency, is very complex issue and requires attention to many components. The present article, which Seeks to the identify purposeful penalization model, insists that the legislator must, in each crime, before any other issues should determine his "Main purpose" and choose the type of punishment according to that goal, and avoid from totalitarianism for acquisition of opposite objectives. Regarding the amount of punishment, the legislators should also consider the ease and advantages of committing a crime, the dark figure of crime, the commonness of crime and the relationship of crimes with each other, while at the same time, in line with the principle of individualizing punishment and increasing the positive effect of punishment, The judge must give more authority to determine the amount of punishment.

One of the steps in the completing of criminal behavior which is response with criminal sanction is attempting. Attempting which is the closest stage to crime is defined as a stage which if there is no obstacle, the crime will end. Response to this behavior is done by various ways. The legislature In the Islamic Penal Code 2013 in spite of later codes has tried to regulate the punishment of it to achieve a consistency in verdicts. Irrespective of this positive approach, sentencing in Attempting in Crime with Multiple and Discretionary Penalties are challengeable and bring about difficulties for judges. This research whit Descriptive-analytical method has implied the legislation and judicial problems of sentencing in Attempting and tried to answer to this question that how is the sentencing in Attempting in Crime with Multiple and Discretionary Penalties. In this regard, there are several ideas which all of them concentrate on a special basis. These ideas are discretion of judge approach, the Criterion the most severe punishment and Criterion the mildest punishment. Findings of this study show that according to interpretive principles and focused on current ideas, about every crime which punishment is Discretionary, the judge has this discretion in attempting too. However, for avoiding different verdicts, the nature of committed crimes and criminal policy about them must be considered.

International crimes such as genocide، crimes against humanity and etc. bring severe effects and disastrous consequences. Subsequently، these are also to the same degree reprehensible، and criminal reaction of states in the form of universal jurisdiction and also responses of the international community in the form of international court with severe punishments are done. Hence، to deal with the question that whether it is possible to exacerbate the punishment of such crimes again in case of the aggravating circumstances or not، we are faced with some uncertainty. Although in terms of philosophy of punish and imposing the penalty، existence of these circumstances for these crimes are imaginable، these circumstances as well as criteria and the resulted intensification of these crimes have received little attention in the context of customary international law and international criminal law. Statute of the Ad hoc international criminal tribunals such as Nuremberg، Former Yugoslavia and Rwanda have no stipulation about these circumstances; however، jurisprudence of two latter tribunals as well as procedure and evidence of ICC discussed this topic relatively but not comprehensively. But still، this question and its criteria and instances، certainly will be one of the most important concerns of ICC jurisprudence in the future. In the meantime، some recognizable of these aggravating circumstances include: extent of brutality and violence in the act committed by international criminals، the social status of criminals، mental state and behavior of criminals after the crime.