نشریه آموزه های حقوق کیفری
پیاپی 10 (پاییز و زمستان 1394)

“The conflict of evidences proving disputes (litigations or lawsuits)” is an occurrence which comes in to view in both proving criminal offences and civil offences; yet, its happening in proving criminal offences contains damaging (destructive) consequences which it requires more attention to take away. Although with considering the Islamic Penal Code of Iran and principles resolving conflict in Uṣūl al-fiqh science, it is possible to be presented general solutions to stop this mentioned occurrence (solutions such as option (takhiyr), lapse, the primacy or supremacy of law and etc.). But it is the duty of a judge to accord every of these solutions with the different cases of the conflicting evidences of proving disputes (litigations or lawsuits). The method of this research paper is the descriptive-analytic for its issue. Because of the difference (distinction) in the legal system of the Hadd offences in comparison with other offences, it has concentrated on the cases of the conflict of evidences proving crimes which deserve (require) Qisas, Diya and Ta’zir and a proper solution for every case has been determined by the paper. The importance of this research is that the effectiveness of the presented solutions (which has been determined by the Islamic Penal Code of Iran) depends on selecting and implementing every solution appropriate to the conflicting case which has happened. Therefore, it assists a criminal judge to stop this conflicting happening and help him to execute justice better. As the research finding, it should be stated that types of crime, types of proofs and cases of conflict are three important components for choosing an appropriate solution to end conflicts which they are necessary to be regarded by judges to secure (guarantee) justice.

Although the Qisas (retaliation) punishment in the intentional murder (killing) has been considered and legislated by the criminal policy of Islam as a basic (primary) principle. This punishment lapses in some cases. One of this cases which it should be thought in the lapse of Qisas or the practice of it is the one when it is supposed the murdered person is debtor and victim’s nearest relatives or awliyāʾ (ÃæáیÇÁ) (legal guardians) demand (ask) for Qisas of the murderer. There is a problem here in this supposition: creditors can stop the right of Qisas or basically in this presumption if it is possible Qisas of murderer without the security (guarantee) for the right of creditors or it is possible when the creditors’ debts are paid or guaranteed or secured. The Islamic penal code of Iran (codified 1392) has followed some of Imāmī jurists (Fuqahā) and has accepted that the victim’s nearest relatives or awliyāʾ (ÃæáیÇÁ) (legal guardians) can demand Qisas (retaliate) without the security (guarantee) or payment (discharging) for debts of the murdered person. From the other side, other Imāmī jurists (Fuqahā) like Imam Khomeini in Tahrir
al-Wasilah says that it is nearer to precaution (ihtiyat to accept the lapse of Qisas) in this situation unless the victim’s nearest relatives or awliyāʾ (ÃæáیÇÁ) (legal guardians) accept -promise- to pay and guarantee the creditors’ debts. This paper has been focused on the Islamic fiqh attitudes of Imam Khomeini and after the examination of opponents’ and proponent’ sayings, it has resulted that the theory (opinion) of the Lapse of Qisas to protect the rights of the creditors and the apparent (outward aspect) indication of ahadith is more justifiable (legitimate).

The dawn of the modern criminal law (as a man-centered law) with entering and taking drawing) the term “the criminal liability (responsibility)” has embraced the consideration of the perpetrator’s personality in its first step. Despite the fundamental importance of the criminal liability in the realm of the criminal policy, the obtaining of the religious anthropology is drawing (taking) and reconciliation of the conscience liability in all the process of the criminal law including criminalization, the criminal liability and the enforcement and execution of punishments. The maximum use of the capacity of the criminal liability confronts a serious conflict with the principle of the religious anthropology which requires the human dignity and the necessity of the flourishing of the important and vital capacity (potentiality) of observing self (by a force which is called conscience) without the outer factors (agents). This paper research with definition and description of conscience, stating its importance, the conscience functions and the flourishing obligations of the conscience liability has proved the requirement of reconciliation (combination) of the criminal liability with the conscience liability with emphasizing on the elements of the religious and moral system of Islam.

The presence of witness in the criminal justice system is one of the participatory criminal policy manifestations which it shines more in democratic societies. Therefore, witnesses as one of the actors in the criminal justice circle must be under protect programs. These programs should be based on the individual freedoms from one side and from other side; they should be based on the government interests. The criminal policy of Iran in the area of legislation is affected by them. Therefore, from the point of the differential criminal policy and exceptional legal procedure, they include circumstantiality which they put forward suggestions. The intimidation of witnesses as a collection of committed acts or acts of perpetration against witnesses is necessary for criminalization. The exceptional criminal procedure with orders like arrest of defendant without initial arraignment, sending directly the case (file) to the court and investigating out of turn are important. Thus, to prevent the identity of witnesses to be revealed, it is useful for witnesses to be wearied makeup and covered by mask during the investigation process. In the legislative criminal policy, the basic strategy is to regulate rules and organize legal proceedings that meanwhile encouraging (motivating) witnesses to appear before criminal justice system, they prevent damages to witnesses. The protective programs are exceptional and therefore to enforce the stipulations based on both subjective and objective depends on the judicial officials. The considerable point is constantly to protect the rights of the first accused because he is charged for a crime and may be punished and sentenced.

Without doubt, the amnesty of the international offenders is one of the factors of impunity and the International Criminal Court (as a permanent organization to confront the culture of impunity and provide the interests of justice) has a crucial responsibility to prevent the Perpetrators for the serious (gross) human-right violations to escape from the international criminal responsibility by using the tools of immunity like amnesty from the punishment. For this important purpose, this note studies and criticizes the approach of the International Criminal Court in a situation that the perpetrators of the international crimes are amnestied after trial in a national court or after national proceedings or after investigation or prosecution by the truth commission and after it, in order to prevent exercising of the complementary jurisdiction of the International Criminal Court and as a defense, they adduce to the Article 20 of the Rome Statute to the double jeopardy rule. According to the research findings, it seems that the proof of the grave human rights abusers who benefit amnesty or pardon for the double jeopardy rule cannot prevent the International Criminal Court to try their prosecution and trial. But at last deciding about it relates to the discretion of the International Criminal Court.

Banks and credit institutions are known as the principle center for currency transactions. Therefore, adopting the proper preventive strategies (programs) has a vital importance to prevent dirty money to enter the monetary and banking system. The first step to achieve this importance it is necessary the effective supervision of the Central Bank of Iran over the establishment of banks and credit institutions to prevent or hinder ineligible people (who launder money) to establish banking institutions and quasi-banks (quasi-banking institutions) for preparing a safe place for their illegal actions. Also, it is essential the continuous supervision over the all banking functions and actions by the Central Bank of Iran to ensure the implementation (enforcement) of the anti-money laundering regulations in the monetary and banking system. From the other side, the traditional banking has been replaced by the electronic and virtual banking and its main feature is the easy and online tracking and transferring. It is good (proper) that the banking system to recognize the suspicious (doubtful) banking transactions indicating money laundering provides (considers) technical equipment and payment systems which are equipped by the exact controlling methods in the systems of banking services for the technological prevention. The next step is to consider standards governing the banking system to prevent money laundering. According to the law on fighting money laundering (Anti-Money Laundering Law) and its implementing regulations, the standards are the duty of the Supreme Council for fighting against money laundering has codified regulations relating to identification and authentication, categorization of persons, determining customer-level activities, the relationship between brokerage and other banks in the form of the instruction. These regulations have had the preventive approach and its exact implementation by financial institutions has a crucial rule to decrease the scope of the commitment of money laundering.

This note studies the legal opinions over the conducts of those who feel the risk of danger from someone with truthful belief and yet reasonable but in reality, it has not been and for this feeling of danger, they defend themselves. What are the legal status and the court judgment about this kind of defense? Generally, there are three opinions about this issue. The first view has placed the behavior of the defendant
(perpetrator) in the area of the exclusion of criminal responsibility. The second attitude believe it is self-defense. The third outlook has studied the conducts of such perpetrator as an essential element for committing a crime from the point of the establishment or non-establishment of the Mens Rea. This issue has also examined from the point of the legal system of Iran and the fuqahāʾ (Islamic Jurists) of Imāmī Shīʿism. Some of them believe the right of self-defense for the putative defendant and some others do not accept it but the legal system of Iran has not taken a clear approach to this subject. The result of the research indicates that putative self-defense can be counted of justifications (justifying reasons) in some conditions such as the fault of the apparent aggressor to make the apparent defendant mistake and the reasonable belief of the apparent defendant that he is in danger and it could be counted of the exclusion of criminal responsibility in some other conditions such as no fault of the apparent aggressor to make the apparent defendant mistake and the reasonable belief of perpetrator that he is in danger.

One of the important principles and rules in the process of the criminal procedure is the issue of jurisdiction. This principle is taken from the other important principle namely the legality of the court and it is considered the part of jus cogens in the criminal procedure. As both sides in dispute cannot enter to an agreement which is contrary to or in conflict with what the law has granted courts jurisdiction. This subject is also considered the cases which differentiates the civil procedure from the criminal procedure. However, in the criminal procedure and the domestic jurisdiction, the legislature has given permission to some authorities (officials) to deviate from the mentioned rule in some exigencies and exceptional cases. In reality, this matter as a breach of the domestic jurisdiction is an exception for the mentioned principle. This issue has been considered by the two criminal procedures of Iran and France. With attention to the exceptional nature of this issue, it is necessary the powerful and stable justifications to take away the jurisdiction which has been defined by the law. One of these justifications is the category of the consideration the public order and security which have been determined by both Iranian and French legislatures with differences. In cases, the facility of investigation and the acceleration in the investigation process can justify this breach of the principle. In this research paper, it has been tried to explore and analyzed the measures and cases of tendency of both legislatures meanwhile propounding these justifications and comparing them two mentioned legal systems. Recognition and comparison of this subject has a crucial rule to secure (guarantee) the rights of accused and victims and society as main actors in the criminal procedure.