جستجوی مقالات مرتبط با کلیدواژه « death penalty » در نشریات گروه « فقه و حقوق »

Hadd is one of the types of Islamic punishments the amount of which is determined in certain crimes. This kind of punishment has different types, some of which lead to the death of the convicted individual. This article examines the question of whether, if a hudud punishment leading to death is executed but for any reason does not result in the execution of the convicted individual, the punishment must be carried out again. One of the scenarios of the silence of the ruling in Islamic Penal Code is the case where a hudud punishment resulting in death is executed once and for any reason does not lead to the death of the convicted individual. The findings of this research indicate that there is no explicit ruling on this matter in the current laws and regulations. To answer this question, five possibilities were proposed, and each was evaluated based on various evidences and documents.These possibilities include: 1) Necessity of repeating the punishment 2) Prohibition of repeating the punishment 3) Necessity of repeating the punishment in cases of violating others' rights and not executing it in cases of rights against God 4) Necessity of repeating the punishment in cases of rights against God and not executing it in cases of violating others' rights 5) Necessity of repeating the punishment if the deficiency in the initial execution of the ruling is attributed to the convicted individual, and prohibition of repeating the punishment if the deficiency is not attributed to them. In this principle, if the fact that the convicted individual's life was not taken in the first instance is attributed to a trick or deceit employed by the convicted individual or the execution agents, the death penalty is carried out again. However, if the lack of the convicted individual's death occurs in an extraordinary manner, without any known reason and without any trick or deceit from the convicted individual or the execution agents, the re-execution of the death penalty is excluded. In this research, while dismissing the documents supporting the first four possibilities, the fifth possibility was proven with reference to multiple jurisprudential, legal, and foundational evidences.

Sentencing studies in drug offenses show a consistent pattern of the vulnerability of the lower-class offenders and the immunity of the high-class offenders from severe punishments. The current study seeks to answer how the socio-economic status of offenders as an extra-legal factor affects the criminal process of drug offenses eligible death penalty. In this qualitative study, the content of documents, including 74 cases of drug offenses convictions between 2010 and 2020, have been analyzed. In-depth interviews with judicial activists, drug lawyers, Drug Control Headquarters officers, and convicted drug offenders (37 cases) were also used. Our Findings indicate that defendants in criminal prosecution are faced with discriminatory enforcement of Crime detection laws and drug weighing control. Also, Institutional discrimination in the judicial process (the significant differences in performance of Court-Appointed Lawyers and private lawyers), more importantly, Drug-related judicial Corruption and, as a result, charge movement or charge reduction of high-classes offenders (The collection of all these factors) dramatically reduce the probability of prosecuting and convicting high-level traffickers and increase the probability of sentencing low-level drug offenders to the death penalty. In addition, the lack of transparency and discrimination in the clemency process is an opportunity to prevent high-level drug offenders from execution.

The provision of Article 91 of the Islamic Penal Code 1392 has ambiguities and difficulties both from a jurisprudential and human rights perspective. The possibility of interpreting the law to the effect that, in principle, adults under the age of 18 are sentenced to death, except in exceptional cases; the authority of the judge to prove that an adult under 18 years of age is not subject to exceptional cases; disregarding the personality of adults under 18, and the vagueness of the alternative punishment of the death penalty are some of these difficulties. The present article attempts to identified these ambiguities by employing a descriptive-analytical method and by using legal documents, Islamic jurisprudential and judicial opinions. Finally, some suggestions to modify the law was propsed.

By ratifying human rights documents (such as Article 6 of the International Covenant on Civil and Political Rights & Article 37 of the Convention on the Rights of the Child), Iran has committed not to execute persons under 18. However, in the previous Islamic Penal Code (1370), once children reached the age of legal maturity (9 and 15 full lunar years), they are supposed responsibil even for crimes that were punishable by death. Therefore, death penalty for crimes before the age of 18 was incompatibile with the mentioned obligations, until the Iran enacted Article 91 of the Islamic Penal Code of 1392 in this regard.
From other hand, Iran also obliged to respect Islamic standards (the fourth principle of the Constitution of the Islamic Republic of Iran); Therefore, the Iran has two obligations regarding the  death penalty for  juveniles, the first one is a human rights obligation and the second is a religious obligation; Therefore, the compliance of Article 91 of the Islamic Penal Code with these two forms of commitment needs to be investigated. In this regards, the main questions are as follows: "1. What are the jurisprudential and human rights challenges of Article 91 of the Islamic Penal Code 1392 in relation to the death penalty for adults under 18 years of age? 2. What are the roots of these challenges? And 3. What is the solution  for these difficulties?". In order to answer the three mentioned questions, three levels of analysis were adopted.  First, each challenge is described and then criticized in terms of legal foundations, jurisprudential (fiqhi) evidence and relevant human rights documents. Then, the roots of these challenges and the presuppositions that exist at the background were analyzed. After that some suggestions to modify the law were proposed. The present article differes from previous researches in that it involves a comprehensive view of the chanllenges raised by article 91 of Islamic Penal Code and suggests a revision of the law.

In this research, the ambiguities and difficulties of Article 91 of Islamic Penal Code 1392 in relation to the death penalty for juveniles, have been identified by using library sources and in a descriptive-analytical method.

The difficulties of the article are extra-legal and extra-islamic jurisproudnece rather than jurisprudential or legal. Its root lies in the lack of attention to philosophical issues about jurisprudence and different levels of law (especially legislation and islamic jurisprudence). Having a cross-disciplinary and extra-legal perspective and paying attention to philosophical issues about jurisprudence and law, it is concluded that solving the problems depends on taking these issues seriously:(1) In traditional and classical jurisprudence, the meaning of the “condition of reason” in criminal cases is not only its literal meaning (only the absence of insanity), but it also includes intellectual perfection. Therefore, failure to refer explicitly to the conditional nature of criminal liablity and its dependance on intellectual perfection can not be the reason for its absence in jurisprudance. (2) The requirement of rational perfection for criminal liability is logical in the sense that the absence of explicit reference to it can not be attributed to Shariat; So, (3) believing that criminal liability is dependant on both intellectual perfection and criminal liabilty is possible and defensible from the point of view of Shari'ah and jurisprudence, and it is also necessity. (4) Legal system, jurisprudence and Shariah in various legal fields (including law education, legal research, legislation, law enforcement and litigation) should move in this direction.

The two concerns of compliance with Islamic standards and with human rights obligations have led to the approval of Article 91 of the Islamic Penal Code (2012). The following five interpretations are inconsistent with the relevant human rights documents and cannot be defended based on the correct inference from islamic jurisprudence:(1) The article allows commentators to interpret the law in this way: death penaltyof an adult under 18 is only an exceptional matter; (2) distingushing and proofinf of criminal maturity lacks criteria; (3) Given this fact that the perpetrator is not subject to the mentioned exception, the judge can even ignor the medical reports about the juvenile under 18 about rechhing full Intellectual growth ; (4) The personality of a under 18 person who is punishable by death penalty is not considered; In the event that the judge determines that the juvenile under 18  is not executed due to the lack of full wiseness and criminal growth, the alternative punishments are ambiguous.

The right to life is the leading natural human right which is respected in all legal systems. It is preliminary to the many rights which are basic to the human being and there are tight restrictions on the circumstances one might be deprived of it. Recruiting an analytical-critical approach, the present study is aimed at examining human rights documents to determine (a) the extent to which the right is cherished, (b) how "death penalty and abortion" is viewed, and finally (c) whether the documents adopt a consistent stance on the circumstances which lead to the deprivation of the right. Findings suggest that despite the highly restricting approach on death penalty, abortion is legally and rather generously accredited. Finally, it is maintained, such a paradoxical stance on the right to life- emanating from the liberal and feminist views- is in obvious opposition to both religious values and human rights standards.

Inflicting pain and suffering on the human and imposition of punishment and special forms of it called execution has always been a philosophical topic in various fields; is imposing the most extreme pain and suffering on another-in the form of the death penalty-moral and justified? The answer to this question has been expressed by relying on the functions of this punishment and moral correctness of its nature has been given less attention. Albert Camus is one of the writer and philosophers who are discussed in this issue. From his point of view, the execution is murder under the name of the law and cannot have a justified legal basis. In particular, such punishment, as evidenced in history, has been unable to fulfill its functions, and the inappropriateness of the death penalty is due to its incompatibility with the philosophical and moral foundations of life, the lack of examination of the parameters involved in committing a crime, the conflict with the principle of the personal nature of punishment, and the immorality of the objection of pain. Intentional infliction of pain resulting from execution shows is a reorganization of “killing” and its depenalization of it, is a step towards protecting human life.

The present paper aimed to study effective solutions available in the Imamiyeh jurisprudence and the Iranian criminal law to decrease the execution of death penalty in Iran to not only save human lives but also realize human rights in Iran.

The library method was used to conduct this descriptive-analytical research.
Ethical Considerations: Originality of texts, honesty and confidentiality were preserved in this paper.

The execution of death penalty was almost common in the past. However, with regard to the necessity of respecting for human rights and lives against violence, the execution of death penalty is now forbidden in many parts of the world or has been decreased to a great extent. Therefore, the present paper have dealt with three types of punishments, namely definite punishment, retaliation, and discretionary punishment, in order to find effective solutions to achieve the foregoing goal.

According to the Shiite criminal jurisprudence and the Iranian criminal law, the death penalty proved to be the most severe punishment among others. With regard to quadruple punishments introduced in the Islamic criminal law (2013), death penalty falls into three categories including definite punishment, retaliation, and discretionary punishment.

Considering the history of punishments in law throughout history, the death penalty is the most severe type of punishment that has been imposed and has been executed in various ways. Looking at the current laws, this punishment exists in our penal code under different headings. One of the topics under which the death penalty is imposed is the issue of Hodud. Hudud are also punishments that are considered for some important sins, the type, amount and quality of which are determined by the holy shari'a in the book and tradition. Considering that after the Islamic Revolution, one of the sources of legislation in our country is jurisprudential books, in this article, we examine the jurisprudence and law, the basis and criteria for determining the death penalty for crimes subject to hadd, and on the one hand, comments Various and famous jurists are discussed and examined, and on the other hand, certain crimes subject to execution are investigated according to the Islamic Penal Code adopted in 2013.

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.

Drinking wine or any alcohol-containing drinks (khamr) is one of the Great Sins, the punishment of which is considered among ḥudūd by the majority of Muslim scholars (jumhūr-al-Fuqahā). In some religious schools (madhāhib), the punishment for drinking wine (khamr) is 40 lashes and in others, it is 80. The present study seeks to answer what the penalty is for repeating this crime following the last time it is confirmed and punished. A group of jurists believe that they must be punished by death and others deny the death penalty. Among the group who believe in death penalty, some say that hanging must be administered after the third time they commit the crime; others state it as viable for the fourth and the fifth times. Some of the believers of death penalty prescribe death penalty for the fourth time; however, others assign ta‘zīr for this. On the other hand, the deniers of hanging (death penalty) are two groups: one group denies its credit from its very basic; however, the other group believes that such atonement has existed from the very early Islam, but it was outdated sometime and the reason for that is controversial. Any of these statements have been attributed to some reasons and causes. In sum, regarding the insistence of shari‘ah on protecting human life, especially the Muslims, in many Qur’anic verses or Hadiths, in addition to the principle of depenalization/penalization as well as the requirement of presenting a narrow interpretation, the present study repudiates death penalty for any form of the mentioned crime.

Death Penalty is the most severe social and legal response to crimes that are against the interests and security of society. This punishment is the end point of a human life. Although the criminal policy of societies, based on the principle of proportionality of crime and punishment, has legislated this punishment, but this attitude is in complete contradiction with other criminal policies, including the effectiveness of punishment and the correctional and educational aspect of punishment for the offender. In Islamic jurisprudence, crimes punishable by death are few and mostly include Qesas and Hadds. Although the basis of legislation in Iran is on Shiite jurisprudence, the Iranian legislator, due to social requirements has acted contrary. The legislator’s current approach is to reduce executions. The Iraqi legal system is more customary, with executions being reduced to some extent in amendments to the country's penal code, including the death penalty, security-related crimes (domestic and international), and terrorist crimes. For this research data collection done by documentary method and by studying valid laws and sources and the obtained information has been analyzed descriptively-analytically.

The well-known Islamic jurists with adducing to the authentic hadith narrated by abu Basir (Arabic: ابوبصیر‎) have decided murder for the perpetrator of the unchaste hadd offense at the fourth time and a few of the Islamic jurists with adducing to the authoritative hadith of Yunus ibn Abd al-Rahman (Arabic: یونس بن عبدالرحمن) have issued murder at the third times. The author in this paper has tried to study the Islamic legal rule for the unchaste repeat crimes necessitated ḥadd (Arabic: حد) which its punishment is the execution of the perpetrator and also it has been surveyed the proofs of Imamayeh Fuqaha. From one side, it has been examined the opinion of the grand ayatollah Khuei in Takmelat al-Minhaj (تکمله المنهاج). He believes the differentiation of the decision at the third and forth time between the different instances of these offences. This paper has comprehensively criticized the evidences of the opinions. At the end with the necessity of the careful observing in Islamic legal rulings and emphasizing on the imperfection of the evidences of these three opinions and its obvious conflict and disagreement with the precaution in shedding blood, the article 136 of Islamic penal code (1392) is not valid and has no jurisprudential legality.

Death penalty is disputed retribution between the chain of retributions with different execution styles has accompanied humans throughout history with numerous followers and opponents. In the last decades disputes between the followers and opponents between the followers and opponents of this retribution has continued more extensively. The result of these fundamental disputes of the opponents and elimination of this retribution from the criminal law or in some cases, despite keeping it in texts. The execution is eliminated. This article focuses on the death penalty while looking for attaining the philosophy of death penalty by utilizing the two major views of retributivism and utilitarianism in philosophy of retribution and it’s reconciliation with each of the two views mentioned before. The results indicate the although death penalty is mostly accordant to the objectives of utilitarianism like incapacitation and relative compatibility with preventing through intimidation, it is corresponding more with the opponent view that is retributivism. Revocation or undermining the routine futuristic justifications of life deprivation punishment, can help legislator remove or at least limit the punishment.

Regardless of the time, historical developments of the death penalty in America and Iran, is indicative two fundamental transformations in execution modes of the death penalty.On the one hand, capital punishment was removed from the public arena and went behind the prison walls and on the other hand, application of new methods of killing is considered by policy makers to reduce the risk of pain. Such alterations are typically attributed to achievements of penology, the primary task of which is to identify the most effective sanctions for criminals in order to better serve the purposes of punishment. Although the most studies of death penalty are carried out in penology area, these examination has an internal approach to criminal developments and these fundamental changes has nothing to do with society. But the sociology of punishment claims that better understanding punishment needs investigate the relationship the idea of punishment and other social phenomena and forces and trace its social roots. Punishment, which in criminal law is considered as state's response to violations of law, sociologically is studied as a phenomenon which must be explored in the broad context of community. In sociological study of punishment, as in other disciplines, different approaches to society could produce different analyzes of the criminal response. A Durkheimian structural and holistic view, perceives deep relationship between punishment and social values and refers to the effective role of community’ sensibilities in the developments of methods of penal practice. The Durkheimian perspective interprets punishment as a cultural pheromone. Roughly speaking, Norbert Elias's ideas of civilization process can be considered a kind in line with the Durkheimian theory. From Elias's point of view, evolution of individual sensitivities gave rise to transformation of culture and these developments can be clearly seen in the mirror of punishment. In sum, Durkheim's and Elias's ideas are “cultural explanations of punishment”. On the other hand, sociologists such as Michel Foucault and Max Weber, are not so optimistic about penal alterations. According to Weber, the scientific advancements, development of bureaucratic institutions, and the human distancing from spiritual values have led to instrumental rationality - the use of the instruments to achieve the highest benefit - in all aspects of social life, including the type of imposition of criminal sanctions. Thus, the method of executing of the death penalty is not the result of cultural developments; rather, these new methods are the result of the development of new technologies and distancing from the basic questions about the nature of punishment. In the same vein, Foucault argues that punishment is important part of more broad strategy power and social control. Accordingly, evolution in methods of punishments is indication of change in the form and content of discipline and control, and it should not be interpreted as humanization penal practices. Likewise. Foucault argues that modes of punishment did not change just because of the humanitarian concerns of reformists, the use of knowledge and technologies in modern methods of punishment are all in line with the preservation of power relations in modern society, which in turn masked the real aims of punishment. This recent analysis in the sociology of punishment is known as "punishments and technologies of power".

The penalty for blasphemy against the holy Prophet and the Infallibles prescribed by the Shiite Jurists based on the hadiths is the obligation of killing the blasphemer and that his blood may be shed with impunity. Nonetheless, there are a variety of cases in the infallibles' practical conduct where they have treated the blasphemer nobly and with tolerance and prevented their companions from executing the death penalty. The authors, with a view to resolve the above said contradiction, have reviewed and analyzed the hadiths underlying the death penalty for the blasphemer and concluded that up to the certainty of the referred proofs is the obligation of killing the blasphemer who has targeted the holy Prophet’s prophethood position. In case the subject matter of hadiths is extended to those who blaspheme the Imams, the death penalty concerns the rancorous persons and blasphemers who knowingly and intentionally insult the Imam's legal personality and Imama position. Therefore, there is no conflict between the religious ruling of punishing the blasphemer and the Infallibles' practical conduct in the form of treating morally and generously those who unknowingly insult them and, out of ignorance, were hostiles to their individual personality.

In the present study, regardless of the Penological and philosophical aspects, the effect of sociological changes and factors on the increasing of death penalty, as well as, its reduction in relation to Drug crimes were studied. In this regard, a question titled "what are the main reasons of increasing the death penalty for some drug traffickers in early years of the revolution and during of the imposed war and executed in public by considering the "punishment and social solidarity" theory. In those times, death penalty have been as the emotional expression and reflection of community anger against violation of social values. However, death penalty has presented the most important function in those social situation. During the time, the attitude of people and elites towards the punishment and especially death penalty on drug crimes in terms of advection of socio-cultural evolutions and the change of values in the context of society was upgraded. One of the most important signs of mentioned evolution is the lack of execution of the death penalty in public.

Iran legal system like some other legal systems recognizes and applies the death penalty for drug-related offenses. On the other hand, many States have abolished the death penalty in their laws or practice or at least do not apply it in cases relating to drug-related offenses. So, the main question of this article is whether or not Iran’s criminal policy in this regard is compatible with international human rights norms. Present studies show that under international human rights law, especially under the International Covenant on Civil and Political Rights, the application of capital punishment, while not prohibited, is restricted in exceptional ways. The death penalty may be imposed only for the most serious crimes under some requirements. The studies show that drug-related offenses do not have exceptional feature and they are not an instance of “most serious crimes”, and so could not be subject to capital punishments. Thus, Iran has to abolish the death penalty for drug-related offenses in the light of its international and human rights obligations which would be more compatible with constitutional and Islamic foundations of its own legislation.

The criminal justice system detects crimes and convicts the defendants by gathering evidence and holding a trial for controlling the crime. It is generally assumed that the convicted persons are factual criminals. However, some convicted persons are innocent. Main causes for wrongful conviction of the innocent are related to numerous and consistent errors and misconducts of police and judicial actors (prosecutors, police, investigators, and judges). Given the prominent features of drug crime's evidences - whether in law or in practice - are more likely to occur error and convict the innocent person than other crimes. In this qualitative study and by using case study method (29 samples) the prevailing factors that lead to miscarriages of justice (wrongful conviction and wrong arrest) in drug crimes were analyzed. According to the research findings, the main evidence of drug crimes for prosecuting and convicting is the detection of drug in possession of suspect; If the drug is discovered in someone's possession, it will be very difficult to prove innocence.The importance of analyzing the wrongful conviction in drug crimes is increasing with a significant number of death penalty in this crimes. Even if the number of wrongful conviction in drug crimes is very low, the legitimacy for the death penalty in these crimes will be more questionable than ever. Determining death penalty in the crimes that don’t even have a religious obligation for punishment and its specific type (execution), more and more undermine the legitimacy of this punishment. One of the main consequences of existing wrongful conviction in the criminal justice system is the abolition of irrecoverable punishments such as death penalty.

The objectives of punishment are deterrence, retribution, correction of criminals and protection of the society. The designers of statute of Nuremberg and Tokyo tribunals that after Second World War established among mentioned objectives was taken into consideration only retribution. While in resolutions of Security Council of United Nations for the establishment of international tribunals for the former Yugoslavia and Rwanda all the objectives of punishment are inferential. Death penalty has not been predicted in their statutes. The reason of this can be the ratify of international documents of human rights as ICCPR and the second optional protocol of it and ECHR and annex sixth protocol of it can be named. On the other hand it can be claimed that in spite of there is no consensus in the context of death penalty prohibition in international law but the ratification of international criminal court statute by a huge number of countries in the world especially the countries that death penalty has not been prohibited in their internal regulations, represents the influence of human rights law on international criminal courts statute. But the case that can effect the impact of human rights law on statute of the international criminal court, is the possibility of retrial toward the convicted person in international criminal court by national courts that still have kept execution in their laws, so by correcting article 20(2) of statute and changing the word “crimes” to “behavior’, we will not only witness observance of human rights law of ne bis in idem, But also Status of the human rights law in prohibition of the death penalty in the statute of international criminal court will be protected in the best way.

Many Islamic rulings are to protect people's lives and this shows the importance of human being's life for God- the Exalted. Nevertheless, in Islamic countries, there are many death penalties. Are numerous death penalties, in the Islamic societies, based on teachings of Islam? To reply the above question, the Ijtihadi arguments should be inevitably studied and, based on study of the Book, Sunnah, and viewpoints of Muslim jurisprudents, the well-known rule of “caution in issuing verdict for death penalty” should be found according to which issuing each and every verdict or taking any action which may lead to death of someone should be based on firm proof or conclusive presumption and in other cases, such a verdict should be issued cautiously and free of any suspicion. And this shows that there are certain restrictions for issuing death penalty in Islam. Despite importance of this rule, however, it has not been independently discussed in legislation and execution of death penalty. On the other hand, after approval of the Islamic Penal Code (1392/2013) and other special penal laws as well as increase in cases of death penalty, it seems that the legislator has not paid attention to this rule as much as he should. Thus, while discussing its arguments, foundations and scope, the authors have mentioned cases of discrepancies between laws and this rule and attached much importance to it in legislation.