نشریه مطالعات حقوق کیفری و جرم شناسی
سال پنجاه و یکم شماره 1 (بهار و تابستان 1400)

Thomas Cohen's scientific paradigm theory is developing from its main realm that is natural sciences to social sciences. Islamic criminal law can be studied from this point of view. The task of this article is to review the factors involved in formation of the prominent paradigm in traditional Islamic criminal law. Relying upon historical-analytical methodology, the article examines the effects of factors such as the environment in which Islam emerged, the influence of Aristotle's philosophical and logical ideas on Islamic thought, metaphysical anthropology, the extreme literal interpretation and mainly a duty-based view of man. Referring to some challenges that the traditional view is facing in contact with modernity and Human Rights, the article suggests that some developments in paradigms can and even should be welcomed. It is because some parts of paradigmatic developments are a part of the conduct of the wise (bina al- oghala), which is recognized as a source of Islamic law. Of these paradigms is a right-based paradigm. According to the article, the openness of traditional Islamic criminal law to the idea of right and approaching a right-based criminal law will result in some positive and significant changes. Conversely, ignoring the idea of right will make Islamic criminal law far from realities and the requirements of the time.Keywords: Islamic punishments, paradigm, duty, right.

The simplicity and efficiency of rational choice theories are one of the most crucial issues in criminology but they are not successful in explaining expressive crimes. The dominant point of view believes that this failure is due to the irrational nature of expressive crimes; so, the defenders of this theory try to present an interactional and multiple method to cover the weaknesses of rational choice theory. Their attitude is to make a strong base for rational choice theory. This paper is supposed to show the reasons that make the rational choice theory weak in explanation of expressive crimes. Furthermore, it tries to reveal the possibility of understanding expressive crimes in the context of rational choice theory. This research is based on descriptive method and criminology literature. This paper shows that the economic human as a scientific sample is not in compliance with criminal decision-making process. The cognitive mechanism of human being cannot evaluate costs and benefits of behavior before committing a crime. In the opposite aspect, adaptive rationality can explain the psychological mechanisms that are related to expressive crimes and their role in criminal decision- making.

One of the most prevalent forms of sexual violence against women is that perpetrated by husbands. While some of the victims decide to divorce, others make an attempt to prevent their husbands from violence by filing a criminal case. However, in order to achieve their desired outcome, both groups are required to prove the violence, which is not straightforward given the private nature of sex. Therefore, the questions addressed in the present work are: what are the challenges faced by victims trying to prove their being subjected to sexual violence, and what are the solutions for facilitating the proof of such violence? To address these questions, a qualitative approach and the case-study method are used in in-depth semi-structured interviews with 18 judges, 10 lawyers and 35 victims. Also, non-participant observation technique is used by attending 16 hearings. The findings show that the proof of sexual violence is complicated by disappearance of physical evidence over time, the lack of eyewitness, courts’ evasion of acceptance of scientific evidence, and the fact that sexual violence is not always accompanied by physical injuries. However, it appears that until the laws are amended and supplemented, the difficulty of proving marital sexual violence can be alleviated under the [existing] legal capacity of knowledge of the judge by using other countries’ experiences on evidence in domestic violence, such as calling the victim as a witness, acceptance of expert testimony and child testimony, and considering the history of charged and uncharged crimes, and bad acts of perpetrator.

The Islamists following the Arab uprisings achieved legislative power., As a result, incompatibility between Islamic law and modern law actually become much more apparent. First, Islamist tend to Islamization of criminal law but then it seems that they have changed their scheme. Now, our question is, how and why have the positions and approaches of these movements and parties as political actors have changed, especially in the legislation of issues related to criminal law?The scope of this paper is limited to moderate Islamists, which participates in politics through a party and electoral competitions. The paper tries to find an answer to the above question by focusing on Tunisia, as a case study.Islamists were faced with difficult choices between the norms of human rights and sharia law, and so the issues have become more controversial. The crimes of apostasy and blasphemy which violate freedom of opinion and expression, as well as various issues of women's rights such as sexual crimes and polygamy, are among their major challenges.The Elnahda has eventually abandoned any attempt to Islamize criminal law. This change can be justified by the fact that, first, the party has adapted to the requirements of democracy. Second, the party, like any other political party, has changed its approach to secure its interests, that is, its presence in power.

Although in the Islamic Penal Code of 1392, the principle of legality of crime and punishment, in general, and in the case of Ta'zirat, Qisas and Diyat, in particular, has been accepted, at the beginning of Article 10, dealing with the non-retroactivity of criminal law, there is a phrase that seems to remove Shari’a punishments from this rule. In this study, first of all, it is stated that government regulations (Nezamat & Mogharrarat) encompass all statute codes, including the previous laws concerning Shari’a punishments, and these punishments are not retroactive. Secondly, considering the acceptance of the principle of legality of crime and punishment in Ta'zir, Qisas and Diyat, and considering the fact that the rule of non-retroactivity of criminal law is a definite and undeniable result of the principle of legality, the only exception to this rule is the inclusion of the non-mentioned Hodud in the case of subsequent legalization. Third, the execution of a later Shari'a punishment is permissible only if the perpetrator has not been previously convicted and punished, for example, in the form of Ta'zir. In any case, the author suggests removing “government regulations” (Nezamat & Mogharrarat) from the beginning of the article 10.

The semi-liberal system is one of the innovations of the Islamic Penal Code of 1392, which has followed the changes in the criminal sciences in Western countries and in response to the shortcomings of imprisonment, has entered our country's criminal system. In this criminal institution, the convict spends some of his / her sentence outside the prison's harmful environment with the aim of accelerating the process of rehabilitation and correction, as well as reducing the adverse consequences of imprisonment. This penal institution, like other penal beneficial although imported institutions, , faces challenges despite all its constructive consequences. Legal challenges (lack of judicial procedure, ambiguity in enforcement, issuing authority, necessity or non-necessity of request by the convicted person, issuing authority, its connection with other penal institutions, dominance of criminal system imprisonment, less credibility to the criminal arbitrary institutions and also to exclude some crimes from the scope of this criminal institution) and the extrajudicial that is divided two categories of criminology (the challenge of the conventional functions of the criminal justice system and the post-release challenges of imprisonment in the semi-liberal system) as well as the executive (lack of efficient and credible manpower and tending to the imprisonment of judges) ought to deserve to be reminded. This research, which has been written using a descriptive method and using the first category of research resources, seeks to identify the most important challenges and offer appropriate solutions to them to the managers of the Iranian criminal justice system.

Charges trading can be considered one of the compromise-based methods in criminal cases. This approach, which follows from the Commonwealth legal system, deals with the accused and the prosecution on the subject of the charge, and eventually reaches a certain structure and agreement. This approach has been taken into consideration by legal systems to address issues such as speeding up the process, reducing costs, and preventing further harm. Economic crimes also require a rigorous criminal approach, given the dangerous nature of the behavior, the pervasive consequences at the community level and the characteristics of the perpetrator. What is visible in most legal systems in the world regarding economic crimes is the subject of property restitution. This has made the accusation trade a very important place in the face of economic crimes in countries such as the US, France and Japan. Today, such a facility is not available in the Iranian legal system, but due to the crisis stemming from the slow pace of litigation and the growing volume of economic cases, it seems that processing and measuring its effectiveness against economic crimes can lead to appropriate decision-making in dealing with these crimes. In this study, we seek to address the question of whether the transaction of a criminal charge in the criminal process is a question of whether there is a substantive possibility of using a criminal transaction in economic crimes. And what would be the impact if it was used to deal with economic crime in the country.

Initiating an investigation at the prosecutor discretion into the Afghanistan situation is one of the mechanisms for exercising the ICC jurisdiction. This is the Prosecutor’s approach to counteracting the inaction of the Security Council and the Afghanistan state which do not seek to prosecute war crimes on its territory. The Prosecutor’s consideration in this way relies on establishing a reasonable basis in article 15(3) of the Statute which must also be approved by the Pre-Trial Chamber. But the Pre-Trial Chamber’s assessment of the Afghanistan situation is in line with the interests of justice in article 53(1)(c) of the Statute and has prevented to initiate an investigation the Afghanistan situation. Therefore, the analysis of the ICC jurisprudence of the Pre-Trial Chamber and the Appeal Chamber in this regard is of importance, originality and research innovation. The method of study in this article is descriptive-analytical and critical in order to answer a question: what is the function of the interests of justice in the ICC jurisprudence to initiate the Prosecutor investigation in the Afghanistan situation? Research findings show that the factor of interests of justice in article 53(1)(c) of the Statute is not related to the request of the prosecutor under article 15(3) of the Statute. Accordingly, the Pre-Trial Chamber’s approach to the argument that there is no interest in justice in refusing to issue a permit to investigate in the Afghanistan situation is inconsistent with the components of article 15(4) of the Statute.

The principle of legality of mode of trial is one of the requirements of the principle of legality of criminal procedures that is mentioned in the Principle 36 of the Constitution, the Article 12 of the Islamic Penal Code and the Article 2 of the Criminal Procedure code. This principle requires that the criminal procedure authorities ' operations and the mode of trial must be determined by law. Whereas this principle is accepted in Iran's legal system, we should consider that have its requirements been regarded in practice? By studying the regulations in criminal procedure, it will be clarified that the in some stages of criminal process, the regulations other than law have determined the mode of trial. In this case, we can mention to some approvals of the head of judicial branch, especially after the adoption of the Criminal Procedure Code in 1392. So it seems that however the principle of legality of mode of trial in criminal procedures is accepted in Iran's legal system, but in some cases this principle is violated in practice.

Unwillingness caused by consumption of liquor is a harmful state that has forced Iran’s criminal system and many of other criminal systems to reaction and legislation over control and prevention of that state. Iran’s legislator recently has altered words and terms of the last regulations and legislated a controversial regulation (Article 264 of Islamic criminal law) and excited a fairly wide disagreement about encompassment of penalty of liquor consumption upon consumption of psychedelics and psychedelic tablets like met amphetamine, amphetamine, L.S.D and Ecstasy; In a way that some criminal courts choose penalty of Had and others choose discretionary punishment for unwillingness caused by willful consumption of psychedelics. This Article, with the descriptive-analytical method, has studied the matter and resulted that among two viewpoints, the viewpoint of opponents of encompassment of penalty of liquor consumption upon consumption of psychedelics is more justifiable and more correct than the adherents viewpoint, because the first conforms with jurisprudence foundations and the rule of “Ehtiat in Hodud” and jurisprudential rules and penal policy of Islam’s legislator in “Hodud” and because of its enjoyment from the support of famous jurisprudential views and majority of jurists; Article 264 of Islamic criminal law, therefore, should be elucidated on basis of the viewpoint of opponents.

One of the means law is positivist law. criminals law is a set of rules that define a crime, determine its punishment, and determine the method of proving the crime and the execution of the punishment in the realm of criminal law, we have also come to the writing systems, in order to quantify the rational criminal low in their study of their claims. our approach to written systems is abviously formal and positive. in our explanation of our hypothesis, we chose coherence and explained the reasons for our reversal.in our view, rational criminal law is an interdisciplinary approach that follows the examination of the criminal law and the legalization of the judicial process derived from it through the logic of knowledge. Logical criminal law in the aftermath of military creation is a conditional and homogeneous proposition of self-substanted , positive coherent, deductive and qualitative propositions in our view, the logical rules of criminal procedure are also fundamental, formal, constitutional, disconnected from the origin of the law and are foreseeable.

Fear of crime among the citizens of a society is an important topic in the study of criminology and sociology of deviations, because the fear of crime, despite challenging the security of all countries, even It affects individuals' private lives, to the point where it intensifies feelings of distrust and vulnerability in individuals and divides communities. Therefore, fear of crime must be carefully analyzed. The main question is whether the residents of the 13th district of Kabul were fear of crime? In what places, what are they afraid of and why?This research has been used as a survey and Pearson correlation type. The statistical population was all residents of 13-District of Kabul, which 285 people were interviewed by multi-stage cluster sampling. The main and the dependent variables were measured with multiple choice Likert scale.The findings and results obtained from this study indicate that the total level of fear among the residents (from a minimum of 2 to a maximum of 5) was 3.43. Women with an average of 3.19 are more afraid of crime than men with an average of 2.95. There was a significant relationship between the variables of social disorganization, micro cultural diversity, neighborhood trust and neighborhood affiliation with the fear of crime variable. But there was no significant relationship between the variables of police and media practice with the variable of fear of crime.