نشریه آموزه های حقوق کیفری
پیاپی 24 (پاییز و زمستان 1401)

The Iranian laws are silent on the ruling of consent of the victim on bodily harms and it has often been claimed that it has no effect. However, in Germany Article 228 of StGB bars punishment of the actor in cases of consent of the victim, provided that it would not be against common decency. From legislative foundations perspective, the approach towards consent might be based on one of the harm, paternalism or legal moralism principles, the ineffectiveness of it being based upon the harm principle and the German Approach being based upon paternalism. In Germany, plus full consent, hypothetical and presumed consent are treated as full consent, while in the Iranian law these instances are justified via the rules of necessity. Some examples of consent of the victim on bodily harm from non-physicians include medical and semi-medical operations such as circumcision and tattooing, illegal sports and sexual masochistic acts. According to the German law, if all conditions being present, consent dissolves the second element of crime (Rechtswridigkeit) and the actor will have no civil responsibility. In Iran, there is no specific ruling, however considering the general rules consent of the victim will have no influence on Ta’zir. Speaking of Qisas and Diya, it has been claimed that most Islamic jurists believe that it will dissolve both of them. It is recommendable that the Iranian Law adopts an explicit point of view on consent on bodily harm. In some dimensions like tattooing, regulating and in some other dimensions like mutilation, explicit criminalization would be a proper criminal policy.

Crime is the fundamental and first pillar of the four pillars (crime, offender, punishment and victim) of criminal law and it shows the importance of common norms and values so that their violation is considered undesirable and unacceptable and is subject to punishments and reactions. In all national and international systems, one of the main functions of criminal legislatures is to define crime in a way that includes all its components and elements in a comprehensive and preventive manner. A brief view of Iran’s criminal acts from the Constitution era until now, confirms this task, because without any exception, the first attempt of criminal legislatures is to define crime in general. “Actus Reus” and “legal element or official expressions” are common elements of crime in the study of various definitions of crime all over the world, but the third mentioned element that is considered as one of the main components of crime in many books of criminal law (Mens Rea or mental element) consciously or recklessly is missing in crime definitions. Therefore, this basic ambiguity can be raised and, finally, crime has two elements (legal and material) or three elements (legal, material and mental). On the other hand, the relationship between the mental element and criminal responsibility in defining crime is unclear. Is criminal liability the other form of Mens Rea, or is criminal liability a subset of criminality and will essentially be the next stage after committing a crime? These key ambiguities are examined in this article and a new look is taken at the traditional and classical concepts of general criminal law. The research method in this article is analytical and descriptive and current and former acts and regulations and the expert views in this field have been reviewed and analyzed. The result of this study and analysis is the separation of criminality from criminal responsibility by resorting to imputability in which the mental element can also be explained.

Pathology of illegal possession offence shows that there are some challenges. serious different opinions about whether this crime is conditional on the element of ownership or possession of the victim; Ambiguity in the existence of the element of property belonging to another despite the common ownership of the perpetrator; Illegal element presence or absence in the conduct arising from the contract or the execution of right; Disproportionate and vague legal penalties, uncertainty in the implementation of lapse of time are most important shortcomings. Purpose of the research with Collecting and studying data from library sources and judicial decisions and descriptive-analytical method is presenting ideas and reasonable measures based on the balanced protection of private property and public order. The research findings prove that this crime can be committed with elements of ownership or previous possession and with illegal possession of common property by each partner. Presence of illegal element in possession arising from the contract or the execution of right; Necessity to enact proportionate and several punishments are other research findings.

The development of crime at the international level and the deteritorrial of globalized crimes and the convergence of human society in different areas of the globalization process, the necessity of approaching the criminal policy of governments in criminalization and response in the field of National and transnational shows more than before. Combined criminal policy, which is based on a conscious and purposeful process of combining variables with the maximum use of government-community, national and international capacities to control the criminal phenomenon, In the international arena, also means the symmetrical synergy of governments and society. A combined international criminal policy with an emphasis on the common interests of the world community and not focusing solely on criminal responses and emphasizing on the dynamics and diversity of response and how to respond, promises new modeling in the international arena. Emphasizing the additional jurisdiction of the International Criminal Court in dealing with the four crimes, United Nations measures in engineering criminal justice models and crime prevention in the framework of the five-yearly congresses on crime prevention and criminal justice, presenting mandatory guiding principles, indicators of the efforts of the guardians of international criminal policy are combined to ensure international security.

The issue of cryptocurrencies and subjects related to it is one of the issues that needs to be determined at the governance level due to its special nature and significant benefits and costs. Although since 1396 and especially since 1398, the executive branch started regulating cryptocurrencies, but in the absence of codified laws in this regard, the way to deal with activities related to this field, including mining and exchanges, in different areas of regulating and handling crimes and violations faced with problems. The present article, which carried out with a descriptive-analytical method and using library resources and available documents, is going to clarify some crimes that can be committed by cryptocurrency market activists based on the Anti-Smuggling of Goods and Currency Act and describe and criticize some procedures formed regarding how to deal with the actions of activists in this area. The results indicate that some of the good smuggling violations have been decriminalized in the executive regulations, contrary to the laws, and the issue of foreign currency smuggling has not been properly explained due to the lack of attention to differences of cryptocurrencies with similar concepts.

According to the popular view of Imami jurists, the punishment of “Mokreh” (duressing someone to commit a crime) is life imprisonment. However, there are disagreements regarding the nature of this punishment, whether it is limited or retaliatory, whether it is a right of individuals or a right of God, and accepting any of these theories has different legal and jurisprudential implications (such as reconciliation or transformation into another punishment, etc.). In Article 376, the legislator chose the theory of the right of individuals and conditioned life imprisonment on the presence of retribution conditions for the first time. Ambiguities in the article and its lack of legislative precedent have led to different interpretations and created various challenges in terms of interpretation and implementation. For example, in some cases, the deputy perpetrator of a crime goes beyond the direct perpetrator of the murder, or it is not clear whether equality conditions in retribution should be assessed between the victim and the compelling party or between the direct and indirect compelling parties, or considering the conditional nature of life imprisonment, does the request of the victim’s guardian nullify the punishment during the execution of life imprisonment, or does it, like theft with a specific limit, transform into a right of God, and the withdrawal of the victim’s guardian has no effect on its nullification? On the other hand, the relationship between Clause 6 of Article 19 and Article 375 is in a realm of ambiguity. This article, using a descriptive-analytical method and based on referring to jurisprudential and legal sources, seeks to analyze the nature of the punishment of “Mokreh”. The research results indicate that the conditions referred to in Article 376 are merely the evidentiary conditions for retribution (intentional compelling, equality in religion and intellect, and the absence of coercion), and in terms of nature, the theory of punitive life imprisonment in compelling someone to commit murder is more in line with the principles governing crimes and punishments, effective criminal policy, and the preservation of the rights of the victim’s family. Therefore, it can be said that with the approval of the supplementary Article 6 in 2020, life imprisonment for compelling someone to commit a crime has been transformed into first-degree imprisonment. Additionally, considering the exceptional nature of the provision in Article 376, a Muslim addict who commits murder under compulsion is not sentenced to life imprisonment; instead, according to the last paragraph of Article 376, the punishment of being an accomplice in murder is applied to them. In summary, the aforementioned ambiguities and challenges necessitate legislative amendments to prevent the violation of the rights of the accused and to preserve the credibility of judicial decisions by amending Article 37.

Today, terrorism is considered as one of the main challenges for the security of societies. By carrying out violent terrorist behaviors, terrorists actually have a high criminal capacity and talent on the one hand, and on the other hand, they have the ability to commit violent behaviors. Committing numerous terrorist crimes has caused the risk-orientating of criminal policy-makers in the field of crime control and a paradigm shift in criminal law. In other words, the dangerousness of terrorists, especially religious terrorists, has caused the suspicion of criminal policymakers and their lack of confidence in the reformation and treatment of this category of criminals. In the risk-oriented approach, the goal is to provide social defense by eliminating the perpetrators of terrorist crimes as “others” who are not “us” and are dangerous to citizens. Thus, the spread of the culture of crime control and repression under the pretext of providing security, the context of moving away from the rule-based criminal justice system and the development of the extreme form of the social defense school in the form of providing the defense of the society through dehumanization, caution and preemption and the others in various forms, such as security measures, indeterminate punishment, rehabilitation and finally post-punishment monitoring are the results of the risk-oriented approach of substantive criminal law against terrorism.

Subsidiary punishment, based on the principle of the legality of punishments, is imposed on the perpetrator in addition to the main punishment, depending on the commission of the crime. Subsidiary (Consequential) punishment requires a provision in the law. In intentional murder, the perpetrator is deprived of inheriting property and Diye (blood money) and in quasi-intentional murders and sheer mistake, he is deprived of inheriting Diye. If there are justified reasons for the crime, such as legitimate defense and the law, this punishment will not be applied to the perpetrator. However, in the cases of factors that eliminate criminal liability, such as murder by a minor and an insanity, forced, murder in sleep, unconsciousness, and murder by mistake, the perpetrator is deprived of inheritance. The application of exclusion in inheritance is not limited to the heir, and the possibility of applying it to the testator, the heir, and the deputy in the case of murder needs to be investigated. Deprivation of inheritance in case of murder is a preventive measure against the occurrence of murder, so that people who commit murder with greed to reach the deceased’s estate, refrain from committing it.

Cultural heritage has always been an attractive target for achieving the economic, religious and political goals of organized criminals and terrorists in internal, regional and international armed conflicts, so supporting this heritage considering that at the international level It is respected by the world and human society, it has always been a matter of consensus, approval and emphasis, and this support, although incomplete, has been reflected in various legal and judicial, political and ideological dimensions. One of the influential institutions that has an effective capacity to support these works at the international level is the International Criminal Court. Although the possibility of filing lawsuits involving the protection of world cultural heritage in the court is not explicitly mentioned, but the review of the existing procedure confirms the jurisdiction of the court in dealing with these issues. One of the important cases in this regard is reflected in the lawsuit of the court prosecutor against Al-Mahdi, which investigation will be the desired military organizer including the goals and effective components in punishing the perpetrators of crimes against cultural heritage. This article seeks to explain the objectives and effective components in punishing perpetrators of crimes against cultural heritage in the International Criminal Court and states that due to the lack of a uniform punishment model in the court’s procedure, the efficient protection of cultural heritage relies on the traditional goals of punishment. Such as punishment, rehabilitation and deterrence are not enough, and other goals such as restoration and revival of historical and cultural monuments and compensation for the emotional pain of the victims who have a historical and religious connection with these places, are more important than the traditional aspect of the goals of punishment, and the criminal punishment system should be based on be organized on these issue.

Inflicting pain and suffering on the human and imposition of punishment and special forms of it called execution has always been a philosophical topic in various fields; is imposing the most extreme pain and suffering on another-in the form of the death penalty-moral and justified? The answer to this question has been expressed by relying on the functions of this punishment and moral correctness of its nature has been given less attention. Albert Camus is one of the writer and philosophers who are discussed in this issue. From his point of view, the execution is murder under the name of the law and cannot have a justified legal basis. In particular, such punishment, as evidenced in history, has been unable to fulfill its functions, and the inappropriateness of the death penalty is due to its incompatibility with the philosophical and moral foundations of life, the lack of examination of the parameters involved in committing a crime, the conflict with the principle of the personal nature of punishment, and the immorality of the objection of pain. Intentional infliction of pain resulting from execution shows is a reorganization of “killing” and its depenalization of it, is a step towards protecting human life.

One of the essential factors in the discussion of liability is the necessity of establishing a causal relationship. This requires that the resulting harm must be attributable to the conduct of an individual in order to hold them liable for that consequence. Accordingly, if the owner of an object has no fault in relation to it, any crime or damage caused by that object to another will not be attributed to the owner. In other words, mere ownership of an object or being responsible for it will not be sufficient to ascribe a crime to the owner and make them liable. This lack of liability for the owner’s control over an object is referred to as “Jobar” in Islamic jurisprudence. Regarding this principle and its implications, in addition to narration articulated by the Prophet Mohammad (Praise of Allah and People be Upon Him) known as “Hadith Jobar”, there are other religious narratives that, in cases where the owners of objects that are fully under their control have not committed any fault or negligence, do not attribute crimes and damages resulting from those objects to their owners. Nevertheless, considering the reflection of the content of this principle in certain articles of the Islamic criminal law code of Iran, such as Articles 500, 505, 511, 512, and 520, an examination of the aforementioned principle can establish criteria for not attributing crimes and damages to the owners of objects based on customary norms.

In many cases victimization is not rooted in real and objective experiences, Rather, it exists only in
In many cases victimization is not rooted in real and objective experiences, Rather, it exists only in the mind of a large part of the public and has not been truly experienced. This emotional measure and mental image caused to the spread of the effects of social events And “sympathy” with the real victims This is referred to as the “mass reproduction process”. Under such circumstances, individuals in the community understand and process crime-related issues And each has an image of the environment and society in mind. Interactive criminology as a branch of postmodern criminology meanwhile illustrious the role of interactions and communication processes believes that actors act on their mental images as account capital. Images that are received and interpreted during their communication processes And they are made as “masses”. This article seeks to investigate this issue and its factors and effects by focusing on this theoretical approach and using the descriptive-analytical method. results show; Official police and judicial discourses and the media, the quality of interactions, the degree of vulnerability of people and the seriousness of criminal events have an effect on creating moral panic and reproducing myths such as “mental victimization” and the consequence of this is the spatial formation It is from mistrust, social isolation and moral disorder. It is necessary to strengthen this important statement that existing perceptions of reality are “made by the mind” and can be easily deconstructed through the strength of social ties and the use of formal and informal means of social control.
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