فصلنامه پژوهش حقوق کیفری
پیاپی 34 (بهار 1400)

Considering the importance and effects of pretrial detention in Iran and the United States, it is important to consider the need for fair trial in this regard. In this article, in order to examine the fairness of the pretrial detention in these two countries, the presumption of innocence and equality of arms are considered as two essential principles for a fair trial as a basis. The examination of the presumption of innocence shows that the defendant's detention is not consistent with this principle, therefore, in both countries, measures such as limiting the issuance of a proceeding, the right to compensation and the right of appeal are anticipated. The study of the principle of equality of arms in this case shows that the detention of the accused is not consistent with the principle, Especially in Iran, where prosecutors can sometimes order pretrial detention. In American law, the judge who is neutral can issue this order. In both countries, there is a right of access to a lawyer in order to strengthen the defense rights of the accused at the time of his detention.

The failure of purely governmental responses to criminal phenomena and the increase in criminal inflation have necessitated a focus on participatory criminal policy. A policy that can provide organized responses to criminal phenomena with the participation of people and civil society organizations. In order to achieve these principles, the present study has raised issues such as the institutionalization of social responsibility, the necessity of government alignment with the people, the efficiency of collective participation in prevention, the duty of the government to adopt the best practices and the necessity of developing the province of faith. In order to understand the Qur'anic instances of this policy, he has spoken of the good and forbidding the evil, the correction of the essence, the salutation, and the co-operation in goodness, and has come to the conclusion that participatory criminal policy is not only fundamentally problematic, but also manifestations and instances. Much of it is found in Qur'anic verses related to the above concepts. According to the Qur'anic verses, not only is the participation of the people and the public institutions in the fight against criminal phenomena justified, but the government and government officials are also obliged to accept and foster such participation.

Abstract The right to fair trial is one of the fundamental human rights of humankind. Hence, this right has been now among constitutional norms and in the constitution of some countries it has been subject to constitutionalization. From a historical viewpoint, What important is the Mashruteh Constitution approach to fair trial, as a first constitution of Iran. The main question is that the drafters of this Act, what approach have to fair trial? This paper shows that drafters of Mashruteh Constitution and its complement (Motammem) dealt with “judicial security” and therefore recognized and constitutionalized a set of principles of fair trial such as legality, judiciality, privacy, judicial independence, access to justice, prohibition of unlawful arrest, etc. However, some other important principles such as presumption of innocence, access to a lawyer, prohibition of torture and etc were neglected. As a result, it can be concluded that the Mashruteh Constitution constitutionalized an incomplete version of fair trial.

There are no fixed criteria for sentencing across all penal justice systems and they often vary as a result of social circumstances. Apart from having been rooted in its philosophical and ideological fundaments, punishment is a social event which is directly affected by industrial development and civilization progress. An offense is a personal choice since it is normally a consequence of an individual’s reason whereas punishment is an act of collective wisdom following common reasoning of a group. Even though violence is still prevalent in crime in all societies, civilized humans are not allowed to openly apply violence in punishment and no one simply accepts to use it as harsh punishment. At present, employment of violence by the government as part of punishment is subject to such a lot of restrictions that governments do not possess their former freedom in punishment anymore. Demonstration of severity of punishment has gradually disappeared and now punishment systems have been transformed and rationalized due to modern civilization. Along with modernity, apparent demonstration of violence in the form of death carnivals has left the social scene and logic and modern rationality have set in throughout all aspects of human life, especially social reaction to crime.

In the present age by Getting more complicated of human and social intercommunications the more needs to present of lawyers to make balance at justice, lawyers activities have so many benefits such as transparency in the proceeding and avoid mistakes. A lawyer should have competent skills beside of independency and safety in their profession. Unfortunately lawyers have confronted many obstacles which constrain their independency and safety during and after the defense and these issue changes the advocacy rights of accused person. These obstacles such as note of article 48 of the code of criminal procedure have caused guild discrimination in addition of deprivation of accused person from having a competent lawyer. Also issuing lawyer’s license by judiciary bar which is a dependent organization to the judiciary, not only didn’t make the situation better but the move was backward which caused weakening of independent bar association. Practical analysis also shows that these issues have caused separation between advocacy and judiciary organizations and the solution is the concentrate of judiciary on courts affairs not interference at advocacy affairs.

In Iranian law, bankruptcy is considered a fault and a form of crime against property and possessions, which has been criminalized for violating the property rights of individuals and disrupting the economic system and public order. However, from a legal point of view, there are various legal challenges to the rules of procedure governing these crimes, especially in determining the origin of the prosecution, the manner in which the prosecution is initiated, the necessity or non-necessity of issuing a writ of execution, and the observance of civil procedure. Regarding the private aspect, it is discussed in this article and the following results have been obtained: First, the origin of the calculation of the pursuit time lapse must have been the date of the first non-payment of the merchant. Secondly, the criminal aspect of the mentioned crimes requires the issuance of a warrant if the necessary conditions are provided. Third, the claim for damages resulting from the above offenses - except for the rejection of property and rights subject to the offense - requires the observance of the procedures of civil procedure.

Murder, as one of the major crimes in all legal systems, also faces severe criminal penalties in Iranian criminal law. According to the Islamic Penal Code of Iran, according to Islamic teachings, the provision of retribution for a victim or his progeny, which requires their request and has a private aspect, was designated as the only response to the crime. Given the lack of demand or impossibility of retribution, the legislator responds to public opinion and expects the perpetrator to be punished for disrupting public order and security or for fear of embarrassing the perpetrator or others, as a general punishment. The punishment is gradual and supplemental in various laws. Despite the legislator's efforts to develop the public aspect of all murder cases, there are significant legal and judicial challenges in this area that require coherence in criminal policy and review of regulations. In addition to reviewing legal developments, this article discusses the legal and judicial challenges and proposes a review of criminal policy and regulatory reform.

Social developments require updating the legislator's perspective in line with these changes. While not tolerating commission of the crime and always seeking good response to anomalies, the community also cares about correcting the offender for socialization. The study of Islam's criminal resources and the place of repentance in this system indicates the emphasis on reforming man and his leadership to return to society. In this regard, the legislator, in note 2 of Article 278 of the Islamic Penal Code of 1392, has conferred on the Supreme Leader the power to pardon or convert the penalty of convicts to Nata’ziri imprisonments, on the condition of perpetrator’s repentance and expediency. This conferral of authority to the Supreme Leader is absolute in undesignated Ta'zir, but, in the designated penalties, with regard to their mere divine aspect, it is reflective. On the other hand, although the terms of the Penal Code refer to "expediency" or "religious designated Ta'zir", no attempt has been made by the legislator to clarify these terms. The achievement of the present article indicates that while expediency is justified in tolerance towards convicts, the legislator has not been able to clearly explain the matter without contradicting legal regulations ...