مجله حقوقی دادگستری
پیاپی 83 (پاییز 1392)

In 18th and 19th centuries, American private prisons appointed condemned to hard works and used much benefit of prisoners but this cheap labors had very few facilities. Since the late 1970s, a new form of private prisons arrived to arena of prison. Although the prisons didn’t have problems of privateprison but created new disadvantages. The disadvantages of human rights were very high and even more tragic as the traditional private prisons. In Iranian law, privatization of prisonwas followed by Adel Abad and Vakil Abad prisons. But problems aroused it closed the way for the privatization of prisons.

Emergence of the concept of law in the Constitutional era should be considered as the result of intellectual endeavours of those thinkers who had striven to explain it long before the official date of the Constitutional Revolution (1906). Therefore, learning about intellectual and objective backgrounds and also about the first discussions and analyses on the nature of law will bear great insights. This paper shall deal with the development of idea of change in the political system in the pre-Constitutional time up to the Constitutional Revolution. This in fact reveals the process of emergence and evolution of the concept of law among the thinker or that era. It was not an accident that people sought a constitutional system and laws appropriate to this system. The existence of an unregulated (independent) absolute monarchy accompanied with an absolute law and then introduction of the idea of a regulated absolute monarchy along with the law as regulations were all background elements that contributed to the rise of a will for a constitutional system which in turn had occupied the mind of the main constitutional thinkers. Law for them was the law of a constitutional system. This understanding went serious changes later on.

Right to counsel is one of rights that in different countries legal proceedings and in international instruments on human rights accepted. This paper seeks to examine the defendant's right to counsel in criminal trials of international courts. In this regard, the right to counsel viewed in the criminal trails of the Nuremburg, Tokyo, Former Yugoslavia and Rwanda tribunals and the International Criminal Court. Explaining the need to respect the right to counsel as one of the human rights, presumption of innocence and equality of arms is issue of the first part of this research. Given the importance of this right in order to protect the defendant's personal interestsand the interests of the international community (in international trials), and essential scientific and technical competence for lawyers, therefore the terms and conditions for obtaining the representation in international courts are expected that these terms and conditions are the issue of the second part of this article. The right to counsel during the pre-trial, trail and post-trail of international criminal courts proceedings is the subject of the third part of this research. In the fourth section of this article, various instances of the right to counsel are discussed.

The expert's opinion is a view of a specialist and professional person that a judge usea as useful tools for solving civil and criminal claims. This opinion is not special to nowadays law and before it was noticed as expert's idea for Islamic jurists in the Islamic jurisprudence texts. But today, with attention to specialization of science and fundamentals, it is feeling the importance of the institution more than before; in addition the rate of judge authority in acceptance or denial of the expert's opinion is very important for its effect to the result of claims. The importance of this discussion is more obvious when the expert's opinion is opposite to other reasons. So, the purpose of this paper is analyzing of expert's opinion in frame of legal and juridical presumptions and illustration of judge decides against this opinion that will happen in survey of legal and jurisprudence texts. So, several questions are arising among these discussions, for example is expert's opinion of legal or juridical presumption? How much is judge authority in acceptance of this opinion? With notice of precedent of expert's opinion in jurisprudence texts, what is the idea of Islamic jurists about it? To answer these questions, this survey considers the expert's opinion in analytical and comparative way. As a result, it is surveyed expert's opinion and rate of its credit in law, expert's idea and its credit in Islamic jurisprudence, presumptions and kind of suppositions and supposition of expert's idea and in finally duty of judge in applying of expert's opinion. Finally, the results of surveying the above discussion and answering the questions are: expert's opinion is of juridical presumptions in law and absolute supposition in jurisprudence that it results of comparison of special supposition with legal presumption and absolute supposition with juridical presumption and so the judge is not in force to accept it absolutely, but when he states his reasons, he can refuse to accept it.

The conditions of redress and penalty for defloration have not been specified explicitly in the Iranian law. A discussion which often arises is about the conditions of the payment of arsh-ol-bekarah (bekarah=virginity) and mahr-ol-mesl in case of defloration. In this article, with the help of comparative study on the penal laws enacted in 1370 and 1392 (1991 and 2013) and analyzing the basics of jurisprudence and judicial decisions, we have come to the conclusion that the hymen has no wergild and if defloration is performed with harshness, and through intercourse, both mahr-olmesl and arsh-ol-bekarah have to be paid. In this case unlike arshol- bekarah, which is lower than the complete wergild for a woman, the amount of mahr-ol-mesl may be higher and if no intercourse has taken place then only mahr-ol-mesl has to be paid. In this case mahr-ol-mesl cannot exceed the complete wergild for a woman. In unintentional offenses only mahr-ol-mesl – according to the Islamic penal code enacted in 1991 – is paid. In case of consented defloration the mahr-ol-mesl and arsh-ol-bekarah are variable.

International community, as the result of pains and tragedies arising from two World Wars in recent era, reasonably found that “Law is silent in war” and hardly sought to think about enforcement beside codification. Thus common article 1 of the 1949 Geneva conventions and its notions reiteration in the first protocol of 1977 can be treated as a progressive process that in addition to respecting the conventions provisions taking in to account its enforcement. After that all implementations and enforcements of international humanitarian law can be based upon that article. The role of this provision in the promotion of that implementations and enforcements is in so far as one can say a renaissance has happened to the protection of international humanitarian law. This article's goal is to evaluate this valuable role, although take in to account the ambiguities of the article in question.