نشریه آموزه های حقوق کیفری
پیاپی 19 (بهار و تابستان 1399)

P roof of all the actus reus (material elements) of rape requires the presentation of evidence, so in this study, the challenges in the way of organizing the evidence, using judicial experience, were examined. Studies show that two indications of witness testimony and confession are ineffective reasons in proving a rape case; because many restrictions on these two reasons have been imposed by the legislature, which has affected their probative power. Therefore, this study examines the status of incomplete and denied confessions and confessions of other non-judge actors of tribunal and the complexities  of witness testimony, including the observance of testimony and the possibility of deviating (withdrawal) from testimony in a rape case However, Personal knowledge of the judge, in terms of the extent of circumstantial evidence, is one of the most important indications that examples of this evidence have been extracted using judicial experience. However, a review of judicial procedure shows that suspicion casts a shadow over all the material elements (actus reus) of the crime of rape (sexual assault) and one of the main reasons for the breach of the verdict in the Supreme Court is that the rights of the victims have been severely threatened due to the widespread citation of suspicion.

Refinement of Cyberspace in the Light of Human Rights Documents * Leila Pournajafi Ghoushchi (PhD student in Criminal Law & Criminology) * Hossein Fakhr (Associate professor at University of Tabriz) * Babak Pourghahramani (Associate prof. at Islamic Azad Univ., Maragheh) T he refinement of cyberspace in support of some human rights and freedoms is accompanied by interference with the right to freedom of expression and information, as well as some aspects of privacy, and failure to comply with the principles and rules in its application may even lead to violations of these rights. By considering regional and international documents, it is possible to derive criteria for refining in order to achieve a model that complies with human rights standards which its function can be balanced between the  constraints of refinement on the one hand and fundamental rights in a democratic society on the other. This article concludes with an analytical-descriptive method that the observance of the four principles inspired by human rights documents in the practice (exercise, applying) of refining, including the principle of legality, the principle of legal purpose, the principle of necessity and the principle of proportionate, while increasing the efficiency of refinement and reducing the grounds for resorting to anti-refining measures by users can prevent unnecessary interference by governments in the fundamental rights and freedoms of citizens.

C ombined criminal policy is a decentralized movement that, by emphasizing the mobility and multiplicity of responses adopted by the community body against delinquency, guides criminal policy legislators in the areas of criminalization‎, respond making, and litigation process into integrated alternatives. Although, according to this, the paradigm of freedom, equality and power is considered as determined dominant model of criminal policy of governments. As far as it goes, the ability of separating or homogeneity of the combined criminal policy model in the multiplicity of criminalization, including criminality  and delinquency on the one hand and the variety of responses and procedure on the other hand, introduces a new modeling in the field of criminal policy. Accordingly, the function of cultural, social, or statutory actions and civil, administrative, disciplinary, and criminal responses to environmental crimes can maximize the challenge of achieving the minimum achievements in the fight against environmental crime and include the necessary productivity along with changing the scope of criminal policy. Studies showing (are explanatory for) the optimal integration of variables and fluctuations predicted in Iran’s combined criminal policy against environmental delinquency through mere criminal responses and the transformation of this important issue in the coordination of empowerment or preventive strategies and developing the administrative-disciplinary network and civil society is relevant to the crimes in question. This article examines the aspects and effects of a combined criminal policy regarding environmental delinquency and effective strategies in Iran.

A mong the many defense rights of the accused, the last defense, which is considered in the final stage of each stage of the trial based on the presumption of innocence principle, can be considered as a complement to the defense process. Accordingly, the legislator has mentioned this right in Articles 262, 371 and 399 of the Criminal Procedure Code of 1392 (2014). The present article uses an analytical method to answer the questions of whether judicial authorities are required to make a final defense at all times at the end of a proceeding. If the accused is summoned to receive his last defense while he is not present, is it possible to request his presence while he is not present, to obtain the amount fixed in the courtship bon and the recognizance (penal sum) or to seize the bail? The findings of the researching indicate that the final defense is the right of the accused and includes a duty (obligation) for the judicial authority. The summons must specify the last defense without result, which is the absence of a summons. The judicial authority is obliged to obtain (get) it only if it is related to the accused. Failure to obtain it, in addition to disciplinary violations, invalidates the verdict. In the absence of the accused, existing security of the accused cannot be obtained or confiscated (abjudged).

Terrorism is one of the most important challenges of criminal justice in the domestic and international arena. With the increase in terrorist crimes, some governments have taken new measures to protect citizens and maintain the authority of national sovereignty and ensure public order and security. Hence, extensive changes have taken place in the criminal justice system of different countries. Paying attention to the dangerous state (dangerousness) of the perpetrators and repressive responses has led criminals to become more secure. Since prevention in its specific sense and traditional criminalizations (criminologies) are not effective lonely, relying on the concept of danger with preconceived (preemption, anticipation) notion implies a new paradigm in preventing terrorist delinquency in the form of new criminalizations. Premeditated (anticipated) criminality focuses on terrorism-related behaviors and stops the perpetrator himself or herself on the verge of committing a terrorist crime. Instead of waiting for those who seek to commit a terrorist crime to succeed, legislatures are expanding the scope of criminal law to bring the struggle to their knees. Thus, by creating an active and prepared state in criminal law, they either move the realm of criminal law beyond the attempt of a crime or collusion (conspiracy), or by criminalizing crimes related to a terrorist crime or temporary intervention measures, intended for “before the threat”, extend criminal law as far as possible with the aim of preemption (anticipation) in the fight against terrorism.

he emergence and formation of significant waves of Covid-19 disease and the increase in the number of patients (infected people) and human casualties caused by it, has put a complicated situation facing the Iranian society as in many countries involved in this phenomenon. Despite the efforts of virologists and health professionals in developing and communicating (notifying) health protocols as well as public education for the management of this biological crisis, many individuals, regardless of the rules and limitations, in different forms transmit or spread the virus to specific or unspecified individuals, and expose their physical integrity. In this case, investigating the consequences of the case and identifying their criminal responsibility becomes relevant. This article uses a descriptive-analytical approach to explain this issue and its criminal dimensions. The result of the work shows that at any moment, it is possible to attribute the types of intentional, quasi-intentional crimes and unintentional (accidental) crime to the transmitting human agent according to his mental position and the quality of his behavior, and he is responsible for the consequences. This does not mean, of course, that the intervention of legal institutions cannot end to criminal events. On the contrary, if there is a causal relationship between the behavior of these people and the mentioned results, as well as proving the element of guilt, the way is clear for imposing diya (blood money, financial compensation) and discretion punishment (ta'zir) on them.

T he resolution of the Security Council on the situation in Sudan contains hidden components, the identification and validation of which requires the interpretation of the Statute of the International Criminal Court. The purpose and subject of this article is to study the components of the Security Council resolution from the perspective of the provisions of the Statute in the judicial procedure. The study method of this research is descriptive-analytical and relies on judicial procedure in the situation in Sudan and theories related to the provisions of the Statute. The main question of the research is what function and achievements does the Security Council resolution have in the situation of Sudan in the mirror of the statute provisions? The research findings show that the Security Council resolution on the situation in Sudan includes components such as; the establishment of the jurisdiction of the International Criminal Court is the termination of international immunity and the necessity for governments to cooperate with the International Criminal Court. The function of these obligations as a result of the interpretation of the provisions of the Statute has led to the non-member government of Sudan being considered as a  member state of the International Criminal Court. Thus, the dismissal of the claim of non-membership of the Sudanese government in the International Criminal Court, the termination of the obligations of customary international law in relation to international immunity and the prohibition of governments refusing to cooperate with the International Criminal Court are achievements of interpreting the Security Council resolution in the light of the provisions of the Statute and the procedure of the International Criminal Court in the situation in Sudan.

P roof of retaliation (qi.sas) in premeditated murder requires conditions, one of which is the equivalence of the perpetrator and the victim in “religion”. This condition is due to the controversy of Islamic jurists that there are three sects of narrations in relation to it. Thus, the Shiite jurists, by rejecting the narrations based on the retaliation of the Muslim killer against the Dhimmi infidel (first category), have been believed in the non-retaliation of the Muslim killer  murder of a muslim murderer against the tributary (dhimmi) infidel (third category). These narrations by attributing narrations tending to corroborate retaliation in the case of habitual murder, they refer to the absoluteness of some verses of the Holy Quran, such as the verse of denying (no) domination (Allah will by no means give the unbelievers a way against the believers), as well as the consensus of the jurists. However, it seems that their reasons for not proving (ascertaining) the retaliation of a Muslim murderer, absolutely or non- habitually, face serious problems. So that by renouncing the mentioned narrations to the infidel deserving to be fought with, finally in the face of the intentional killing (deliberate killing) of a Muslim against a dhimmi infidel (Tributary infidel), there will be no choice but to prove (ascertain) retribution.

A ccording to paragraph (b) of Article 422 of the Islamic Penal Code, “adultery (Zinā, unlawful sexual intercourse) with the spouse of the father” results in the execution of an adulterer (fornicator, the man guilty of adultery). This law is based on the  famous fatwa of the Imami jurists, who, after stating a sub-theme on the subject of “incest” -as one of the factors to prove the fixed punishment of (hadd) murder- introduced a second sub-theme on the subject of “adultery with a father’s wife” (Zinā, unlawful sexual intercourse with the spouse of the father) and it is also considered as another proof of the hadd (the fixed punishment) of murder. Of course, in the statements of the jurists, sometimes the secondary matter is stated as one of the examples of the first matter and sometimes as one of the independent and separate factors, while basically it seems that the determination of the death penalty for such a crime is not definite; Because some other jurists in a contradictory theory, do not consider this act to be punishable by death. Therefore, it is necessary to see what the reason of the jurists and the law on the death penalty in this regard is. This research, which has been done by descriptive-analytical method, shows that the basis of this view and law is a special narration that can be questioned; because in addition to the jurists denying from a part of it and criticisms of it, sharia and law are also based on absolute prudence about blood. The rule of warding off (Adriwuu alhudud bialshabahat, Ward off the fixed punishments on the strength of shubha as much as you can) and the presumption of innocence rule and principle of continuity also confirm the irrevocability for caution (prudence) in blood and also the irrevocability to protect the respected population. Therefore, it seems appropriate to remove paragraph (b) of Article 224.

From the very beginning, in the Iranian penal system, a single criminal policy has not been adopted in the field of anti-narcotics (Narcoterrorism, combating drug) crimes that at times, the legislature has dealt severely with this issue by enacting strict laws, and at times has even tried to decriminalize some former crimes. In the last article of the amendment to the Anti-Narcotics Law enacted on 1396/07/12 (2018/10/04), the legislator has tried to reduce the scope of the death penalty for perpetrators of drug crimes, a policy that is in line with international pressures and in contrast to the idea of severity of punishment in order to achieve the goal of rationalizing the criminal response system to drugs. In this article, while analyzing the principles of this change of approach, the dimensions of Iran’s legislative criminal policy against drug delinquency are examined. The fact is that although the legislature sought to reduce the punishment of perpetrators of drug crimes, changes in practice have led to an increase in the severity and intensification of the criminal approach to this group of criminals. In fact, the assessment of this study indicates that the criminal policy adopted by the legislator, contrary to the first notion of the single subject bill, although in some cases it seems reducing, in practice has sometimes led to strictness and severity of criminal action.

A long with the development of international law in both criminal and environmental fields, the concept of ecosystem/ ecocide/ geoside was also invented and used by thinkers. This concept, which focuses on widespread, long-term, and severe environmental damage, has been the subject of much debate and theorizing in recent decades and has been limitedly recognized in the ICC Articles of association as an example of war crimes. In addition, the Statute of the Court has the ability to identify some instances of ecosystem as tools for crimes against humanity or genocide. However, for reasons such as the different nature of environmental crimes and the lack of full coverage of ecosystem cases by the statute, it is necessary for this concept to be recognized as an independent crime and internationally criminalized. This research by using descriptive-analytical method seeks to justify the reason for this criminology and to state the reasons for its necessity and to examine the challenges facing it and to provide solutions in this field. Today, it can be argued that conflicting ecosystems is one of the fundamental global values and one of the universal international obligations, the criminalization of which has become necessary and inevitable at the international level.

J urisdiction of Criminal Court One is enumerated (reckoning; computation) in Article 302 of the Code of Criminal Procedure enacted in 1392 and Article 9 of the Law on anti-terrorism financing enacted in 1394 (2016). However, in addition to the main jurisdiction, this court also has additional jurisdiction and articles 313 and 314 of the Criminal Procedure Code of 1392 (2014) are examples of crimes committed under the jurisdiction of the Criminal Court Two for additional jurisdiction in the Criminal Court One. Due to the additional jurisdiction of Criminal Court One, the judicial procedure has faced challenges in the various stages of the preliminary inquiries, trial (proceedings) and objection. One of the findings of the researching is that if the public defender (defender au officio service, court appointed advocate) in connection with the crimes causes the punishment mentioned in paragraphs A, B, C, D of Article 302 of the Code of Criminal Procedure and during the trial the court finds the crime milder (lenient), the lawyer in question has still the right to defend in the case even for less serious crimes in this case. The present article descriptively-analytically, by gathering library resources and reviewing judicial opinions, highlights these challenges and finally offers practical solutions to overcome this challenge to those in charge of criminal policy-making. One of the most important findings of the present article is the lack of need for special legal formalities (due process of law) in additional jurisdiction. f