مجله تحقیقات حقوقی
پیاپی 104 (زمستان 1402)

In democratic policymaking, the demands of citizens in Criminal Normalization are taken into consideration. The legitimacy of criminal measures is achieved through the identification of citizens and the protection of their freedoms. In a democratic system, citizens have the most democratic participation in the Criminal process. In this research, this question is answered in a descriptive-analytical way through library information in the light of the three principles of representation, citizenship rights, and limitation of power. What is the position of citizens' demands for a fair criminal policy that is maximally acceptable and to what extent should the will of the general public be taken into account? The result of the present study is that the principles of democracy in any society, in terms of the degree to which it is conceptualized, affect the type and manner of criminal policies. Democracy by providing citizens' satisfaction and providing democratic participation while influencing criminalization can provide the basis for a fair criminal response in society. Paying attention to the will of citizens in democratic policy-making causes criminal responses to be redefined in the light of the concepts of civil rights, and criminalization and Sentencing to be carried out following the culture and civilization of society. the findings in this study are positive this fact, That the coercive result of establishing the concepts of democracy in societies is not necessarily the establishment of humane criminal responses, and in some cases, policymakers deviate from democratic concepts to establish strict responses

The acceptance of the principle of publicity of the trial as one of the fundamental examples of a fair trial in the European system of human rights has its roots in the procedure of inquisition courts in the Middle Ages. Lack of publicity of trials and violation of the rights of the accused in these courts has given rise to this inference in European thought that the secrecy of the trial and the disregard for the rights of the accused are considered to be two interrelated cases. Accordingly, a public trial is justified by this argument that public oversight will minimize the grounds of injustice in the criminal justice system. Therefore, achieving this requires conditions and mechanisms that give personality to this principle and make it consistent, because the right to a public trial is a composed concept and can be decomposed into its different components, to understand and explain the true and precise meaning of this right, the sum of those requirements must be considered. However, in certain cases, the publicity of the trial can, like any principle, have exceptions and legal limitations. Therefore, in this article, we have tried to study the European Court of Human Rights rulings and examine the case law of this institution concerning the requirements and restrictions of public trial before national courts with a descriptive-analytical approach. The results of the study show that, in general, the European Court has been able to satisfy the requirements related to the actual realization of the public trial with an authoritative action and a procedure far from hesitation and to adjust its limitations in line with the rule of the principle of publicity of the trial

Bioethics is an interdisciplinary approach that deals with ethical issues arising from the application of life sciences and technologies in human and non-human life. However, we often come across analyses and arguments of another nature, in the literature of this discipline. Although law and morality both are situated in the normative disciplines, they examine issues from different angles. Scholars of this field often, confusing “the moral” and “the legal”, use concepts such as moral rights. It could be shown that such kind of conceptual confusion leads to inconsistency in normative discussions on biosciences and technologies. A study of bio law and bioethics, while trying to delimit their boundaries, based on distinguishing features of each field, could prevent those conceptual confusions. In this research, we aim to examine differences between law and ethics, based on discussing four lines of “aim”, “scope”, “rule generation” and “sanction” and bringing in examples of bioethics problems. We then refer to a third kind of normative knowledge, which, has wrongfully entered the scope of bioethics. Ignoring the distinction between law and morality, especially in the legislation and adjudication processes, would amount to a breach of impartiality and inclination of law towards a particular moral outlook. Consequently, instead of bringing about a context for the coexistence of various ethical viewpoints, politics put pressure on those who believe in a different moral view. A system, in which certain ethical outlooks are accommodated while certain others are not, is undoubtedly far away from justice.

Early Neutral Evaluation ("ENE") is a form of ADR that has become increasingly popular in recent years but is still not known in our legal system. This article proposes the incorporation of a lesser-known Early Neutral Evaluation mechanism. ENE is often cheaper, faster, and more flexible than other forms of dispute resolution processes such as arbitration and litigation. Parties often tend to exaggerate their pleadings and form an unrealistic view of their case. The primary focus of ENE is to provide the parties with an early and frank evaluation by an objective observer of both the merits of the case and of expeditious ways to achieve resolution. Early Neutral Evaluation is seeing the end from the beginning, before entering time-consuming court or arbitral procedures. This article intends to describe why Early Neutral Evaluation must enter into Iranian legal systems. What are the elements and features of this alternative dispute resolution, and under what circumstances it might be used most productively?

Trade liberalization is one of the rules of the World Trade Organization. Prudential regulation is done for financial stability by countries. There should be a legal framework for the World Trade Organization that liberalizes banking services but does not damage financial stability. Based on an analytical descriptive approach data are gathered from the library. According to the article, the World Trade Organization has tried to balance between the liberalization of banking services and prudential regulation and the trade-off between financial stability and the economy. Likewise, after many years of debate banking services liberalization is accepted as a rule and prudential regulation is an exception.

The post-revolutionary landscape of citizenship in Iran offers itself to multifaceted examination. This article aims to scrutinize the status of citizenship within the Islamic Republic of Iran through a legal-political lens, drawing on the tenets of modern citizenship. To achieve this, it places substantial emphasis on the constitution and its nuanced aspects, ultimately posing the question: Is the constitution the absent linchpin in post-revolutionary Iranian citizenship? The findings of this study reveal that while the Iranian Constitution encompasses elements of modern citizenship, it is riddled with fundamental issues, notably the dearth of transparency and inclusivity. However, the crux of the challenge lies within the realm of "culture" – the normative underpinnings of daily life. This entails that the failure to recognize differences and the perpetuation of violence against others constitute cardinal obstacles to the institutionalization of citizenship within Iranian society. Consequently, fostering citizenship in Iranian society hinges, above all else, on embracing others and eradicating violence from the overarching culture of the nation. A pivotal aspect in comparing the emergence of Iranian citizenship with its Western counterpart is its historical genesis intertwined with economic, legal, and cultural interplays among social strata.

The Protective principle as one of the aspects of extraterritorial jurisdiction; is applied when the crime committed abroad is against its fundamental and vital interests. In this paper, by using the descriptive-analytical and library methods and adaptation around the protective principle in the criminal law of Iran and England by looking at international documents, such results have been obtained: firstly, in crimes under the protective principle, accepted subjects of international law in the criminal law of Iran and England have been developed, the application of the criminal law of the two countries is generally the same in terms of type and nature of crime, but, they are different in terms of legal punishment. Secondly, In English criminal law, the condition of trial in absentia was not accepted by the legislator in the application of this principle, but in Iranian criminal law, the implementation of the protective principle by eliminating the condition that the accused be found or extradited to the country is accepted as a kind of trial in absentia, which is more in line with international standards. Thirdly, In English criminal law, in line with human rights considerations, the condition of prohibiting retrial cannot be applied only in the case of some terrorist crimes, but the inclusion of previous punishments is accepted; however, in Iranian criminal law, the prohibition of retrial is not accepted, but the inclusion of previous punishments in penal punishments is accepted by the legislator

This research seeks to answer the question of how can the reconciliation between economic approaches of interpretation and Islamic interpretative views be established and presented as an interpretation with the highest degree of realization of the public interest. Economic approaches to the interpretation of texts can be divided into three main categories. In the first approach, more emphasis is placed on text and literal interpretation of it. From this perspective, with the acceptance of the principle of Costless Legislature, it is assumed that the necessary examinations and analysis have been carried out in the course of enactment and the re-examination of the consequences of applying and seeking an optimal interpretation, merely leads to double costs and waste of resources. The second approach focuses on the origin of enactment. Therefore, the role of Interest Groups or Public Interest in the enactment process emphasizes the Imaginative reconstruction of the enactment process. The third approach also takes the interpretation as a function of the consequences, costs, and benefits of it, and chooses an interpretation that is economically optimal and efficient. Now, the preference for one of these interpretive rules or the combination of them and the identification of the economic theory of interpretation provides Exquisite points like using the social concept of damage in Isālat-al-Dhuhūr viewpoint and Highlighting some of the Sharia purposes, such as keeping property in Maqāsid viewpoint for confirmation of using economic analysis before Literal Interpretation.

The increase in sanctions during the last two decades has created numerous legal issues in contractual disputes, especially in national courts. It is clear that national courts of the sanctioning country, take into account the sanctions enacted by the foreign government, and in case the sanctions conflict with the rights and obligations of dispute parties, they adjust the final verdict in compliance with their internal sanctions laws. Nevertheless, the question is whether a court can, in the process of describing, interpreting, and applying the legal and contractual obligations of the litigants, consider, sanctions imposed by foreign countries or entities in its decision-making process to issue a judgment in the case. In this article, an attempt has been made to examine this legal question with a case study of the approach and procedure of German courts that have significant contractual relations with Iranian individuals. The findings show that the courts of this country, in contractual disputes in which there is an element of sanctions of foreign origin, do not refer to private international law and the rules of conflict of laws, and directly use the capacity of the domestic substantive laws of Germany. Simultaneously, they pay attention to the considerations of German foreign policy to issue the final verdict in such cases. German courts also pay attention to the goals and interests of the European Union's foreign policy and European values in the decision-making process to give effect to sanctions of foreign origin.

The digital environment whether alongside or continues of real life, although does not designed for children, plays an important role in their lives, and a considerable rate of its users are children. Nowadays, the environment has changed to a base for their social and growing activities. Thus we need safe use, families’ empowerment, protection, prevention instruments, dealing with risks, and changing to digital citizens more than before. This issue is reflected in domestic, regional, and international instruments as well. Considering general protection strategies for children in the digital environment and suggesting special strategies for criminal and non-criminal harms and risks prevention are the goals of the paper that can be achieved in three levels of surveying the recent situations, desirable situations, and the comparative solutions which link these two. Findings show that socio-protection and affairs, setting up hotlines, including the cooperation of other influencers and decision-makers, and designing sufficient infrastructures are the main international protection strategies for children.

Article 91 of the Islamic Penal Code approved in 2012 has brought about a serious and effective development in the way of criminal response and appropriate treatment of crimes requiring punishment or retribution for minors under the age of eighteen.  According to the ruling provided in this article: "In crimes that cause punishment or retribution, when adults under the age of eighteen years have committed the nature of the crime, or they do not understand the sanctity of it, or there is doubt about their development and intellectual perfection, as the case may be, with consideration according to their age, the punishments foreseen in this chapter will be sentenced."  However, considering that specific criteria have not been determined to determine the lack of understanding of the nature of the crime or its sanctity and the doubt in the development and perfection of the juvenile mind, it has caused numerous and challenging disagreements in the ruling jurisprudence, which can be caused by the decisions  And the different and contradictory opinions of forensic experts and judges dealing with such juvenile crimes and their mental tendencies are in the course of the proceedings.  Therefore, according to the mentioned challenges, it is suitable  to create a single judicial procedure and prevent the issuance of mixed and contradictory, and arbitrary judgments in this regard, a certain age as the age of criminal responsibility in such crimes is determined in line with international regulations with This type of crime should be dealt with by juveniles under the age of eighteen.

Under The Article 121(3) of Convention on the law of the Sea (UNCLOS) rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. Therefore, the article implies that rock islands are divided into two categories including those enjoying exclusive economic zone and continental shelf and those not. The ambiguity of the article beside the great variety of geographical formations resulted in diverse interpretations of the text concerning the type of rock islands. The South China Sea Arbitration Award (2016) which decided on the Philippines-China dispute is a thorough example among international legal hearings of interpreting rocks, mentions in the 3rd paragraph of the article 121 of UNCLOS. This article clarifying key terms in the legal regime of island in Law of the Sea including islands, rock islands, reefs, low-tides elevations, and Artificial islands, interprets the article 121(3) and customary rules on it, and then, influential elements in distinction of rock islands on the basis of capacity of human habitation or economic life of their own from the perspective of the arbitration tribunal.

The present research aims to investigate the organized confrontation of the British government against three Iranian islands in the Persian Gulf. In this research, the author intends to briefly answer the following three questions: 1- What are the most important historical documents and proofs of the anti-Iranian policy and the English theory of "common ownership of Qawasem"? 2- What are the inconsistencies in England's behavior towards the two theories of "common ownership of Qawasim" and "principle of unowned land"? 3- Was Britain's anti-Iranian policy accepted by Iran in occupying the Iranian islands of Tunb and Abu Musa? And during the 67 years of British occupation of these islands, has Iran's protest against England continued? The current research is a type of qualitative research that is conducted using the document analysis method and using the tools of data and information available in historical documents. The findings of the research show these things: 1- The approach of British policy has always been based on basic elements and principles such as denial of Iran's rights contradiction in speech and behavior and occupation of a part of Iran's territorial integrity and the continuation of the 67-year occupation of these islands by the British government. 2-According to the historical documents, the theory of common ownership of Qawasem claims of England has not been accepted.

One of the challenges of the 21st century is the massive flow of Internally Displaced Persons who have been forced to flee their homes as a result of armed conflicts, situations of generalized violence, violations of human rights, natural or human-made disasters, or execution of development and infrastructure projects and seek safe shelters within the borders of their country. Unlike refugees who cross international borders and benefit from a special legal status under international law, IDPs remain within the borders of their home country thus granting them a legal status analogous to refugees face with uncertainty. This article seeks to examine the legal status of IDPs under international law and find out if they benefit from a distinct legal status or not. By investigating different approaches and examining the definition of IDPs in the light of the UN Guiding Principles on Internal Displacement, it is concluded that this group does not enjoy a special legal status in international law. The increased number of IDPs proves that there are still some major gaps and challenges that need to be overcome.

Infectious diseases, especially Covid-19, have spread rapidly worldwide in recent years and have caused severe human, financial, economic, and other damage to countries. Space technologies have been essential in dealing with the disease and providing services to all people. However, using the technologies raises some legal issues. Providing services and information from space technologies without discrimination among all countries and their availability will be crucial in curbing these diseases. Do the existing space laws present the necessary platform for using space technologies to confront diseases and develop international cooperation? Moreover, what legal regulations are necessary to improve the availability of information to everyone and protect privacy in the future? The international space community should develop new regulations and guidelines to monitor data transfer and international cooperation between countries. To achieve this goal, they should facilitate international cooperation in space information transmission for all countries and prevent privacy violations. While examining some principles of the existing international space laws that frame the use of space technologies to confront infectious diseases, this article discusses legal issues and provides solutions.