نشریه آموزه های حقوق کیفری
پیاپی 22 (پاییز و زمستان 1400)

After enacting the Islamic penal code in 2013, extensive evolutions have occurred in the Crime of Sexual Assault. As in Article 224 for the first time, it has been mentioned the instances of the lack of consent; the instances which are out of the judgments of rape (forcible sexual intercourse without consent) in the law of 1991. Further, the Statute of the first International Criminal Court it was not paid attention to the criminalization of sexual assault but this crime gradually not only entered the more updated Rome Statute of the International Criminal Court but also expanded the realm of its definition by relying on precedent. In this research, we are going to answer the question of what the differences and similarities between the elements of sexual assault are in the legal system of Iran and international criminal law. This paper with a comparative look has achieved an outcome that despite the perplexity (confusion) in Iran’s regulations for sexual assault this crime in the Iranian legal system is a conjunction of the forcible (coerced) circumstances and the element of non-consent. Whereas the majority of courts have been dependent on the rules of countries in the international criminal law the absence of consent has been observed as a criterion for the occurrence of the offense of sexual assault. Also, the element of sexual behavior in the legal system of Iran relying on the jurisprudential definition of unlawful sexual intercourse (Arabic: زناء Zināʾ) and male homosexuality (Arabic: لواط liwāṭ) is very narrower in comparison to the international criminal law.

Economic corruption is a collection of criminal behaviors in which its Perpetrator abuses his position and situation and through it has illicitly gained privilege or financial benefit for himself or the other person with influencing the economic and administrative soundness is important. it is understood as a public problem by politicians. This matter for having many aspects affects different fields and areas and creates different concerns that the political-security is one of these concerns. This paper attempts to answer the question that in the process of criminal lawmaking in the area of economic corruption how the political-security concerns play role in the stage of the definition of the problem. It has employed the method of the grounded theory. The findings indicate that two basic concepts of the integrity and utility of the system of the government make the political concern and with connection to the existence and legality of the system of the government this problem is highlighted in the thought of the activist. This concern in the justification of the economic corruption as a problem appropriate to be adopted criminal policy and to encourage the decision-makers to call attention to it plays a role as an influential force.

Global warming, climate change and its consequences concerning man and the environment are called climate crises. People’s behavior change is a consequence of the climate crisis. Despite this, negligence of climate crisis as the most important crisis in the modern century causes this component traditionally in the examination of the evolution of crime has been neglected. There is much evidence that according to them each of the elements of climate change such as precipitation, temperature, humidity and fog results in the evolution of crime rates and the type of crime. To answer this question what the effect of climate change and the crisis resulting from it on the crime evolution is the authors have utilized four components. Therefore, for recognizing and proving the mentioned relationship, the components “geography-centred, activity-centred, structure-centred, and social organization-centred” were selected as an indicative approach to criminology. The reason for selecting these approaches was the more correlation between them and the climate crisis and the emphasis of the previous researches on these approaches in the light of the meta-synthesis. In this manner, according to the paper findings the climate crisis has led to the climate victimization of citizens and these victims become future convicts. Consequently, confronting the climate crisis can make crimes drop or decline along with innumerable privileges for the environment and man’s health. Therefore, the climate policy and criminalization of anti-climate activities of the state-companies which emit carbon dioxide and the growth in global greenhouse gas emissions are vital.

The examination of the evolution of the 2011s obviously indicates the tendency of the legislature of the Islamic Republic of Iran to moderate the previous punitive approach concerning the drug and Psychedelic drugs and perpetrators of crimes related to it. In this area, one of the notable actions is the insertion of a single article in the Drug Control ACT of 2017. Despite this, the beginning of the single article which is about capital punishment, also called the death penalty shows the mitigating and reducing approach but its note which is about imprisonment for more than 5 years has a punitive approach. Regardless of the punitive approach of the note, the present paper with the descriptive-analytic method is going to study a more punitive and severe precedent as it has been formed for being passed and the enforceability of the insertion of the single article and its note in the revolutionary trials and it is rooted in one of the circulars of the judiciary chief. The consequences show that the part of the examined circular that the judges are prohibited the mitigation less than the minimum which is determined by law is not forcible and is right to be repealed for several reasons such as contradiction with the regulations of the Drug Control ACT and intellect (reason) indications resulting from the study of the process of passing the insertion of the single article and the important legal principles like the principle of qualitizing the rules.

The criminal procedure code 2013 has assigned Articles 2-6 to some Strategic principles of the Criminal Procedure. These principles acquainting the establishment of the fair trial model have driven the legislature to fulfil its international obligations originating from the international documents from one side and to respond positively to the legal community concerns related to observing the fair procedure requirements and its enhancement in the institutions and the different criminal process. So, the important function of these principles is to moderate and control the hostile acts of the criminal activists before the essential (fundamental) rights and liberties of the community members. These principles govern all the different stages of the criminal procedure, all its regulations, all criminal authorities (general and specialized) and semi-judicial. Considering that the legislature has not discussed the scope, provisions and effects of these principles at the time of their application and implementation in the current criminal process, this paper aims at studying the functions and the importance of these principles and presents practical strategies to promote the legislature’s message in two levels “legislation and precedent”.

The necessity of occurring promotion after damage to a victim and reconciling it with the concept of right causes the right to empowerment. The present note with the analytic-descriptive method and with the utilization of the library tools has set out to conceptualize the right to empowerment with the components of the change of the premises from redress to empowerment, transferring from the principle of equality of arms between the victim and accused and the requirement of the concurrent collaboration between the state and convict in the process of empowerment. The findings show that this right is established based on the theories such as the social contract, social welfare and the theory of the social-cognitive pathology to the necessity of the direct acceptance of the state liability for the victim empowerment. Also, the theories of restorative justice and fairness from the view of the need to repair the harm and its role in creating the feeling of achieving justice and prevention of repetitive offending analyze the necessity of the rehabilitation of victims. The objectification of the right to empowerment requires legal manifestations in the national and transnational arena. The examination of these manifestations shows that over time the manifestations of victim empowerment have been developed but still it is far from achieving the realization of the components of the right to empowerment compliance with the aforementioned principles.

One of the vital issues in the realm of Islam criminal fiqh which Islamic jurists have paid attention to is the affirmation or benefit of the liability for the payment of diyya (Arabic: دیه; blood money that has to be paid for homicide and bodily injury when there is no retaliation) to the defendant being mahqun al-dam (Arabic: محقون الدم literally, “his blood is protected”) who is murdered because of the execution of non-capital sentencing. There are four opinions about this: the well-known jurists believe that it cannot be imagined any liability for killing (murder) in all punishments (qiṣāṣ, Arabic: قصاص retributions, ḥadd, Arabic: حد fixed punishment and ta'zir, Arabic: تعزیر non-fixed punishment) and the blood of the murderee is spilt with impunity but some others with the separation between hadd because of violating the right of Allah and violating the right of human beings think that being murdered because of the latter type (hadd because of violating the right of human beings) creates liability and some others believe in the liability due to death as the matter of tazir. Finally, Khansari has serious doubt about the well-known opinion although this matter does not lead a legal ruling (Arabic: فتوا fatwā) to be issued in opposition to it. The present note which has been arranged with the library method and with a critical-analytic approach analyzes the mentioned opinions and their evidence and at last with accepting the opinion of the validity of diyya to all penalties it is proved based on some evidence.

Loss of self-control defense is a new and special defense for perpetrators who have lost their self-control as the result of the victim’s provocative conduct and consequently murder him for the victim’s provocative conduct. In the event of the successful inference to this partial defense they charge with murder and are convicted of manslaughter. This defense basically is propounded in the law of countries with common law and according to the coroners and Justice Act 2009, it is obviously introduced in the criminal rules of the UK and has replaced defense of provocation. The main problem of this paper is to study why defense of provocation was abolished and what the quiddity and provisions of loss of control are. The analysis of this problem with a comparative approach to the penal code of Iran and with the descriptive-analytic approach showed that the new defense it has been attempted to remove the traditional defense of provocation. Although in both defenses the loss of control is the basic element for example, fear of serious violence is not counted as a qualifying trigger in defense of provocation now it is accepted the same as the cause of passion (anger trigger) and the provision of loss of control being sudden has been omitted. Still, in practice, there are some obstacles and problems in adducing this defense for some perpetrators the most important is too much emphasis on loss of control and applying the subjective criterion to its approval. It seems that perhaps consciously making a decision and the solution of the most details has been assigned (allocated) to judges and jury that with considering all facts in every file they make a fair decision. Despite not observing the loss of self-control defense in the penal code of Iran, trials have noticed it and sometimes attempt with their extended interpretations to apply their legal capacities to convert murder to manslaughter and to release the perpetrators from capital (death penalty) punishment.

It is possible that the legal entities which become dissolved before or during the process of the criminal procedure to be merged with other legal entities or converted into another legal entity. Each of these conversions which occurs in the structure and nature of the legal entities impacts the process of the criminal procedure against this entity such as arraignment, explaining charges, preliminary in the investigation, issued writs, etc. The present note with the descriptive and analytic method and with applying the library tools will assess the changes in the current criminal prosecution of the legal entities. The legislature in the present regulations only with enacting article 692 of the Code of the Criminal Procedure has implicitly observed the matter of involuntary dissolution and considered it nolle prosequi, (Latin: to be unwilling to pursue) or suspension of execution of sentence according to cases but it has not observed necessary consideration in other cases such as voluntary dissolution, merge and convention. It makes judicial authorities confront obstacles in action and it may follow results such as conflict of the issued judgments, the continuation (Prolongation) of the procedure and even impunity of the legal person. Therefore, for dealing with the voluntary dissolution of the legal persons, merge or convention along with malice of these entities it is necessary that the legislature with careful consideration deprives the delegates of the legal entities to form and register new legal entities and also these entities meanwhile sentencing are banned from arbitrary institutions such as suspension of the execution of sentence, deferral of issuing a judgment, etc.

The Policymakers’ concern over the decline in the population growth in the recent two decades make several plans and policies be suggested to change this process. The Youthful Population and Protection of the Family Law (2021) presents the last will (intention) of the legislature to reverse this process. Besides the supportive and encouraging policies, this law has seen different prohibitions and restrictions in the realm of screening and supplying tools for fertility control (birth control), legal sterilization and abortion. Along with these cases, like the most specific rules (lex specialis) it has been considered criminal strategies by the legislature and has been tried for the primary purpose of those who codified the law i.e. the population growth to occur. However, the legislature’s criminal intervention from the different aspects encompasses problems (objectable). These problems can be for the process of codifying law and its executive problems from one division. Criminalization with the minimum participation of the assembly and legislation through the emergency route of article 85 of the Constitution of the Islamic Republic of Iran, not paying attention to previous regulations resulting in the penal legislation inflation (the increase in the number of penal laws), referring to the most accessible tool i.e. sentencing and the vanguard of the punitiveness at the circumstance of the lack of the comparative study of the non-criminal strategies it goes back to the process of enacting laws. On the other side, the ambiguity in the type of sanctions including the use of interpretable vocabulary such as “substantial, comprehensive, vast, effective factors and the business circle” and determining the type of punishment to each degree and also the problem for enforcing punishment upon legal entities are of the most important problems that the law will face challenges in the stage of implementation. This note tries to realize and identify the most important challenges and the problems of the criminal interventions of the law in the stage of legislation and enforcement with a descriptive-analytic approach.

Armed conflicts have constantly had destructive effects on nonmilitary personnel. Children as a vulnerable group of nonmilitary personnel constantly need to receive more protection in armed conflicts. The reality of the contemporary armed conflicts justifies offering more protection to children. Therefore, in the military rules of most countries, it is prohibited to employ children in the armed forces. However, the armed groups which engage in non-international armed conflicts with considering inequality in resources and equipment and also this thought that the legal obligations are not binding for them to use and employ children in different ways such as voluntarily, unofficially and even forcibly. International humanitarian law (IHL) and international criminal law with adopting an extended approach have prohibited all forms of the employment (involvement) of children. On the other side, the problem which has made the international community notice is the participation of children in armed conflicts that it exists in a variety of ways such as direct participation, indirect participation and serving in support functions. Despite the prohibition of direct and indirect participation of children in armed conflicts according to International humanitarian law (IHL), the important problem in armed conflicts is to serve in support functions that with the absence of the explicit prohibition in the treaty-based law, the International Criminal Court (ICC) in its first judgment in the Lubanga case in the existence of the particular circumstances has prohibited this act.

This paper relying on the descriptive-analytic method attempts to analyze neuroscientific evidence in the criminal files. The modern techniques of neuroscientific measurement such as functional imaging are a background of the production of neuroscience data. The validation of the neuroscientific evidence by examining privileges and limits held within it will take place. According to the findings of the research cognitive neuroscientific evidence despite its limits such as costly, causing suffering, and uncertainty, … can be supporting evidence along with other criminal evidence concerning the degree of self-control on behavior, the completion of the psychological findings in the personality file, the realization of the Penal majority, … The application of such presumptions in criminal trials requires the explanation of the basic strategies to resolve human rights challenges and ethical challenges.