فصلنامه پژوهش حقوق کیفری
پیاپی 12 (پاییز 1394)

Preventive detention of mental disorders applies for ensuring public protection and for preventing potentially dangerous offenders from reoffending. Former Article 48 and Article 150 of Islamic penal code 1392 are the most important examples of the preventive approach in Iran's law. In fact, preventive detention is a sort of pre-emptive action for public protection. In this measure, criminal law is moving from a retributive approach to a forward-looking approach and applied to pre-crime. Therefore, the article, examines this approach with emphasis on Article 150 of the Islamic Penal Code of Iran and the United States of America’s and France's law that are examples of punitive penal policy.

Defining the concept of crime is the starting point in the criminal thought. Basically, any view taken on the concept of crime formulates the other fundamental criminological concepts (such as the criminal and etiology) as well as basic concepts of criminal policy system (such as justice, criminalization and prevention). In the light of the foregoing, we attempt to discuss the concept of the crime in the framework of two distinct paradigms of modernism and postmodernism. That said, we argue that while the modernist reading conceives the crime with the presumption of the objective nature or inherent meaning, the postmodernist reading, on the contrary, replaces this presumption with the subjective nature or acquired meaning. In order to develop this thesis, the ideas of postmodernism will first be introduced. Subsequently, a critique of the modernist view of the crime will be offered. Eventually, a new definition of the crime from the perspective of the constitutive criminology will be provided. Despite the above-said importance, this analysis of the meaning of the crime has never been touched upon in the Persian literature of criminology.

The reliability of electronic evidence means the authenticity of electronic data in court and playing a role in the judgments. In order to have the same demonstrative function as traditional evidence, electronic evidence must meet two main requirements: authentication, originality and nonrepudiation. It is essential to keep data suitably in the seized phase to achieve these requirements. The secure strategies for protection of the data have been mentioned in clause (T), article 2 of the Electronic Commercial Act and also article 40 of Cybercrimes Act, of which the most important is biometric and encryption. The biometric technology receives and processes the individuals’ data and allows to achieve the data only to whom his/her data have been processed; hence, no one else can access the data. Also in encryption, the data are protected by shuffling in a way that it can switch such statement with only one confidential key and it remains illegible to a person who does not access these data. In this way, the data are protected from alternation and falsification and can be cited in such a secure way.

One of the most significant jurisdiction of the Revolution Court is to investigate crimes which are against the public security. However, there are two categories regarding the concept and the realm of crimes against public security. First, there is a broad interpretation approach toward such crimes committed inside and outside the country which is mostly based on some provisions such as clause (T) of article 303 cited in the criminal procedure law. Secondly, there is a narrow interpretation on the realm of such crime which is more favorable in jurists’ eyes. I attempt to investigate the “broad interpretation approach” to find its contradictions to the many principles of procedure. Beyond such interpretation, there are some temporary consultations to find the best policy such as swift and decisive investigation that will drive the fair trial, supposed to guarantee the individuals’ rights, into a corner in the long term and redouble the importance of minimalistic interpretation regarding the crimes against public security which are about to be heard in the Revolution Court.

Criminal participation as a subject including abetting, complicity and organized crimes created a joint field of study between criminal law and criminology. Basing the definition of criminal participation on “Intervention of at least two individuals” in both studies followed the empathy of those science in explaining concept and setting examples. However, according to the requirements of each area, criminal participation has allocated a different domain to itself. Criminological review of criminal participation suggests that substantiation of this title is based on proof of two elements: engagement with incompatible groups and individuals and effectiveness of incompatible party. Moreover, patterns of criminal participation can be limited in three cases: organized participation, conspiracy-based participation and unconscious participation.

The jurisdiction of a court refers to its capacity in order to take valid legal actions. The first of purpose the criminal law is to inflict deserved punishment for retaliation of the committed crime. A prosecutor prosecutes defendant which might lead to conviction. Many states including Iran claim jurisdiction over the crimes of their own citizens even if these crimes have been committed abroad. Moreover, it is also true for a case when an apatrid individual commits a crime against an Iranian citizen abroad. Considerable ambiguities and errors are observable by studying the determined jurisdictional principles in the Criminal Procedure Code. The reason for this ambiguity revolves around article 316 which is not clear- cut, which may leads jurist and judges to interpretive narrowly. As principle of legitimacy of offences provides that penal codes must be interpreted strictly and should not be generalized through compression method, it is necessary that it article be reformed.