نشریه آموزه های حقوق کیفری
پیاپی 9 (بهار و تابستان 1394)

The hierarchical retaliation (qisas) is of the innovations of the Islamic penal code (codified 1392). The main question is if it is possible basically to implement the retaliation (qisas) in a place differing from the crime ones especially in the lower ranks or it must be done solely in the same place of crime. Replying this question, the study of the thoughts of Imamiyah’s jurisprudents (fiqh Jurists) and Sunni’s ones reveals that there is a difference between the maḍbūṭ crimes which it is possible to be implemented qisas in its accurate position without exceeding the limits and bounds and the crimes which are not maḍbūṭ. Some Islamic jurists have not accepted the hierarchical retaliation (qisas) in non-accurate crimes (not maḍbūṭ) with respect to the equity in qisas and believe that in these kinds of crimes, the financial compensation to be paid to the victim (Diyya) is preferable. But some others have accepted it with regarding evidences such as Ijmāʿ (Arabic: “agreeing upon” or “consensus”), the ’umumat (generality) relating to Qisa and etc. In the maḍbūṭ crimes, most of the Islamic jurists think it is possible to implement the hierarchical retaliation (qisas) because it is possible in these kinds of crimes to implement the equal retaliation (qisas) and there is no reason that the crime victim implements qisas in a different place. Of course, some Islamic jurists believe that there is no problem to carry out the hierarchical retaliation (qisas) in these kinds of crimes and it is stipulated to the consent of murderers. Examining the opinion of the legislature shows that it does not pay attention to these separation and all crimes but with the consent of the murderer are the subject of this kind of qisas.

Criminal justice systems are complicated systematized structures with goals and multiple applications which they have been confronted with profound challenges in recent decades. These challenges are results of inefficiency, the enormous expense and a lengthy criminal procedure from one side and from the other side they are resulted from the crisis of the legitimacy and the public’s distrust to the criminal-justice institutions. The manageraialism is a modern mechanism to reply these problems in the public services with carrying out the methods of the private sections emphasizing on teachings of the customer orientation, assessing and performance management, passing clear performance standards and etc. It is scheduled considerable and fundamental reforms in making decisions and criminal-justice policing. But deep looking to the consequences and the manifestations of the manageraialism indicates the considerable theoretical and practical challenges in the area of the criminal interferences. One of these challenges is the challenge of the criminal justice and the efficiency. The aim of this paper is to draw the theoretical and practical dimension of the aforementioned challenge in the judicial systems with relying on the method of the documentary analysis and the present legal rules. The outcomes show that placing emphasis on the consequences, adjudged orientation and statisticalism which are the most prominent signs of the efficiency. Although it is leaded to increase the ended criminal cases apparently, the enhancement of accuracy and quality in the judicial enquiry has not been achieved.

The authors of the present note have examined the issue of the death and escape of murderer which has been determined in Article 260 of the former Islamic Penal Code of Iran and Article 435 of the present Islamic Penal Code of Iran and conditions and possible assumptions related to this subject and after mentioning its jurisprudential record, they have studied the following subjects: The concept of the murderer’s escape and similar and comparative concepts with it (like suicide of the murderer); the differences legal decisions with respect to killing; necessity of occurring the inaccessible condition (stipulation) to the escaped murderer (a fugitive); identifying the responsible for the payment of diya (punitive compensation) and its mechanism; compatibility of the mentioned verdict in this Article to the crimes except murder.

Justice thought as “fairness” is derived from John Rawls who was one of the most famous liberal political philosophers of the 20th century. Rawls in interpretation of “A Theory of justice” has not neglected the justification of punishment and has propounded his last opinions and approaches about the institution of penalties briefly. The attitude of this scholar in his famous work “A Theory of Justice” is completely different from his look which he has stated before in his article “Two Concepts of Rules”. In his latter article he tries to establish a connection between the teachings of retributivism and utilitarianism for the justification of punishment and places each of them in their proper position. It seems that the approach which Rawls has presented in “A Theory of justice” for justifying the institution of the punishment has abrogated (revoked) his former doctrine in his article “Two Concepts of Rules”. The present paper attempts to prove the validity of the mentioned attitude (idea) meanwhile determining the category of punishment in “the justice system as fairness”.

One of the innovations of the new Islamic Penal Code of Iran (codified 1392) is the acceptance of the criminal liability of a legal person. With accepting this issue, the argument of how to punish them is also being issued. As well a legal person cannot commit every crime, it is also impossible to exercise every punishment for him. Based on it, Article 20 of this law has counted the operational punishments for a legal person. Yet this law has not stated all points and issues relating to a legal person. With regard to the ambiguities in this law in order to practice the main and supplementary punishments…, the paper criticizes and evaluates the punishments of a legal person and scales them including the main and supplementary punishments.

One of the sanctions in some legal systems to respect law in achieving considered evidences is the gathered evidences which are resulted from unlawful measures of officers are not qualified to be presented and given in courts. It is known as “the Exclusionary Rule” and like this, in the legal system of the United States in relation to the illegal inspection and seizure it is operated. With respect to this principle, in some cases exercising this rule leads to not convict the dangerous criminals and it has provoked a lot of criticisms and the United States Supreme Court has attempted to restrict the scope of this rule in recent years. But in the legal system of Iran, the code of the criminal procedure of Iran (codified 1392) has a (short) look to this rule and is accepted a manifestation of it (the right to have a lawyer) in its note 1 of Article 190. But this legal requirement never has been implemented and before it was put into effect or implemented, it was changed in the reforms of the mentioned law in 1394 and “the Exclusionary Rule” is rejected. The principle 38 of the Constitution of the Islamic Republic of Iran and Article 9 of the law has clearly stated (accepted) the legitimate freedoms, and the protection of the citizens’ rights and in spite of being forbidden all forms of torture for the purpose of extracting confession or acquiring Information but they basically (fundamentally) differ from “the Exclusionary Rule” and for this reason the existence of these principles do not indicate the acceptance of this rule in law of Iran. Therefore, now practically there is no instance of the mentioned rule in the criminal law of Iran.

Legitimizing earnings derived from drug smuggling are formed in order to disguise or conceal the identity of illegally obtained proceeds and integrate these legitimized funds into the legal activities. It has been considered (regarded) in international law but not being L paid attention by the national or domestic law. What this note states is determining the factors forming the legitimization of funds obtained from crime in general concept and crime of legitimatizing the proceeds of drugs in the specific concept and careful consideration of this concept, features, and goals and effects. It has been suggested that appended to the rules relating to drugs the legislature considers the criminalization of the legitimization of funds originated from selling, buying, manufacturing and transiting of drugs. At the end, the authors will present their views to codify a rule which is all-inclusive and allexclusive about the crime of the legitimization of funds originated from drugs.

With studying the sources comprised the criminal law in Europe; it can be mentioned two different periods in Europe concerning with the sources of law. The creation of the concept of the Nation-State has caused a fund mental evolution in the sources of the criminal law and it has made deep differences and differentiations in the elements comprising law in the before and after the rise of the Nation-State. The sources of law especially in the era of the Rise of the Nation-State as an external reality have characteristics which they make for us know the nature of this period from one side and understand the nature of law feasible in pre-origin of the Nation-State from the other side. The present note in the first stage has examined the features of law before the rise of the concept of the Nation-State and the components and Characteristics of the modern law which it has formed in the shape of pyramidal system after the rise of the concept of the Nation-State. Today among the countries of the European Union (EU) (EU member countries), a new law under the heading of European Union law has aroused which besides their internal law can be practical. Governing of the new law and the way of its interaction with national law among the countries of the European Union (EU) causes the attenuation of the characteristics of the national law of the European countries or modern law and at the end challenging the pyramidal system.

Legal and executive precedent of police use of firearms is one of the hot issues of human rights studies. British police has justifiable experiences in the field regulating police shooting. They can be useful for Iran’s police. The present paper with comparative approach tries to explore the criminal policy of the legal system of Iran and of the United Kingdom about carrying firearms and use of them in police missions. Most of police officers of Iran carry firearms in their daily activities and in 12 mentioned cases in the law of use of firearms in necessary cases (codified 1373) with considering the provision of exigency they can use firearms. In Britain, most police officers do not carry guns and the cases to apply firearms are determined by the Chief Fire Officers Association or CFOA. According to the current regulations of the United Kingdom, the police officers can use firearms only when they are in danger of their life or an innocent citizen being in an immediate danger of death. In these cases they grant permission to shoot from the senior commander; otherwise granting permission causes the enhancement of danger for their life. To decrease the illegal shooting of Iran’s police it is necessary for police to carry out his missions without firearms and only in some provinces which they confront acts of terrorism and gun attack with previous record they are allowed to carry guns. For special cases to apply the firearm it is necessary only for protecting the life of police officers or other citizens and police should not use firearms in cases for exploring crimes or arresting the accused.