نشریه فقه جزای تطبیقی
سال دوم شماره 3 (پاییز 1401)

Nowadays, the defense rights of the accused as a balancing component of power in the parties of the criminal case have been more and more noticed by different criminal justice systems. Islamic criminal law includes the principles that guarantee the defense rights of the accused in the best way, and in short, either repels corruption from the accused or provides benefits to him. The findings from the descriptive-analytical study of the defense rights of the accused from the perspective of jurisprudence standards and judicial directives show that despite the standards such as the sanctity of blood, the lack of validity of confessions caused by torture, the legality of representation in all lawsuits, the legality of the defendant's silence against claiming man and rationally proving the necessity of explaining the charge to the accused in Imamiyya jurisprudence, in the judicial directives, the important defense rights of the accused have not been mentioned and special protective provisions have not been made. It is not established to guarantee the said rights. Lack of sufficient attention to guaranteeing the immunity of the accused from acts of torture, the general nature of the provisions governing the right to have a lawyer in the criminal proceedings, the lack of an explicit provision guaranteeing the right of the accused to remain silent, and the lack of a guarantee of sanctions about the right of the accused to explain the accusation are the most important lacks in the judicial directives related to the defendant's defense rights, which of course, in some cases, have legislative roots.

In jurisprudential literature, Defamation is performed with other punishments. Therefore, the purpose of the punishment of Defamation should be considered with the purpose of other punishments. The question of this article is what assumptions can be made about the purposes of the punishment of Defamation and the associated punishment? In response to the question that has been discussed regarding the fatwas of the jurists on the four crimes of fraud, beshrew, pander and false testimony by descriptive-analytical method, while recognizing the punishment of Defamation as complementary, assumptions of separation of Defamation’ purpose from punishment of the attendant and the complementarity of the purpose of the Defamation in relation to the punishment of the attendant is proposed. If Defamation has a separate purpose, it is the purpose of individual deterrence, general deterrence, or prevention of victimization, and the attendant punishment necessarily pursues one of the above three objectives without being similar to Defamation. If the purpose of Defamation is similar to attendant punishment, both punishments simultaneously pursue a single goal at different levels. However, if defamation is complementary punishment, two hypotheses can be proposed: some goals are complementary to others, and some punishments are complementary to others to a single goal. If Defamation has a separate purpose, it is the purpose of individual deterrence, general deterrence, or prevention of victimization, and the attendant punishment necessarily pursues one of the above three objectives without being similar to Defamation. If the purpose of Defamation is similar to attendant punishment, both punishments simultaneously pursue a single goal at different levels. However, if defamation is complementary punishment, two hypotheses can be proposed: some goals are complementary to others, and some punishments are complementary to others to a single goal.

Sustainable development means meeting the needs of the present generation without harming the needs of future generations. It has several indicators. One of the main indicators of sustainable development is security. On the other hand, the law means binding rules and regulations imposed by the competent authority. These are the goals whose most important goal is to create security for the citizens. Therefore, law and sustainable development are linked in the concept of security and security is their interface so that the level of security is directly related to the law and the law is effective in sustainable development by creating security, which is the turning point of the two categories. It has different dimensions and one of the most important dimensions is judicial security, which provides justice in society and creates trust and peace among citizens. In this study, while examining the role and effect of law in sustainable development, one of the most basic components of judicial security, namely the prohibition of illegal detention in order to establish sustainable development in various levels of international instruments, foreign and domestic law has been investigated.

The testimony of witnesses has always been considered as one of the most important evidences to prove claims and accusations in various criminal systems. In this research, with an emphasis on criminal matters and with a descriptive-analytical method, a comparative study of the validity of testimony in international criminal courts and jurisprudence has been done. The findings of the research show that from the point of view of jurisprudence, testimony is informing a right that is expressed confirmly and its validity is not dependent on the persuasion of the judge. Regarding the international criminal courts, despite the weak role of testimony as a proof of accusation in the Nuremberg and Tokyo courts as the first generation courts, with the passage of time and the formation of the second generation international criminal courts such as the former Yugoslavia, Rwanda, Sierra Leone and finally with the ratification of the Rome Statute and the formation of the International Criminal Court, we see the increasing status of witness testimony as a proof of accusation in criminal proceedings, which can be seen mainly in the form of special protection measures for witnesses as important criminal actors.

Bankruptcy means the trader is unable to pay the debt. By issuing the verdict of bankruptcy, the merchant is deemed Mahjour (interdicted man) and will not be allowed to seize his/her property. After that, the legal competence of the bankrupt person is left to the receiver in part of his financial rights. It is possible that a businessman intentionally or by his/her negligence acts that would cause him to go bankrupt and cause a loss to creditors. Therefore, the criminal legislature has criminalized two criminal titles of bankruptcy due to fraud and bankruptcy because of fault. If the bankrupt person's case is in the process of proceedings, his hearing will be suspended pending the appointment of the receiver. In relation to the effect of issuing the verdict of bankruptcy on the implementation of the court decision, if decision is related to financial matters, the proceedings will be suspended, but if the sentence is related to non-financial matters, the proceedings will not be stopped.

In the field of the international system, one of the important issues that arise in the proceedings is determining the validity of evidence to prove the claim. Evidence is considered as a means of proving the positions of each of the sides of the dispute in a judicial process. The most common proofs that can be presented before international institutions are written proofs and oral proofs. The purpose of the present research is to investigate the validity of the proofs of the claim in the International Court of Justice. This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles. Most of the rules governing the evidence to prove the case are contained in the founding statute of the International Court of Justice; However, many evidences to prove the case are adopted from the existing procedures in the court.

Due to the expansion of information technology, Traditional law is faced with a new type of evidence in crime detection called digital evidence. Due to problems such as "difficulty of correct attribution, possibility of distortion and destruction", the judicial system faced a new challenge in proving the evidence. It is extremely difficult to guarantee the security, validity and authenticity of data in the virtual space, which is a prerequisite for the credibility of electronic evidence and it can only be achieved to some extent through technical strategies. The legislator of Iran has not neglected to pay attention to these technical strategies and has mentioned this necessity in various regulations. The method of this article is descriptive and analytical. As a conclusion, it should be said that the legislator in Article 40 of the Computer Crimes Law has dealt with security measures metaphorically in the discussion of data seizure. The legislator has deemed it necessary to use reliable security measures to verify identity and authenticity in Article 656 of the Criminal Procedure Law approved in 2013. Attribution of reason in virtual crimes to the accused should be legitimate and convincing and based on criminal grounds.

Nowadays, the destruction of the environment and natural resources as a global problem has attracted everyone's attention. The establishment of various laws has not been able to prevent the increasing process of environmental destruction. In such a situation, the education has become an important discussion. The basic question that is raised and investigated in this regard is: what effect does environmental education have on preventing environmental crimes? The present paper is descriptive and analytical and has investigated the mentioned question using the library method. The findings show that a major part of existing environmental problems is rooted in the lack of necessary awareness and cultural weakness in the field of the relationship between man and nature, and environmental education in the form of development-oriented and community-oriented prevention is effective in preventing environmental crimes. Solving the environmental crisis depends on the reform of human teachings and a change in the attitude, vision and knowledge of man towards his destiny and his surroundings, which can be realized in the form of growth-oriented instructions and the education of people in the growing age. Community-based prevention is also reminded of the danger of environmental destruction through information, awareness and cultural development of other layers of society and promotes environmental protection methods. The result of such a process is the reduction of environmental crimes. In Iran's legal system, despite the existence of some laws in the field of environmental education, this approach faces significant doubts and shortcomings.

Accessory in the digital environment is one of the important issues that has not been studied from a jurisprudential point of view. Considering the growing expansion of the digital environment, it is important and necessary to study it. The fundamental question raised in this research is what is the jurisprudence's approach to accessory in cybercrimes? The present paper is descriptive and analytical, and it investigates the mentioned question by using the library method. The findings indicate that accessory is accepted in and since the digital environment is one of the new and emerging issues and phenomena, accordingly, accessory in jurisprudence can be analyzed and generalized to the digital environment from a jurisprudential point of view. Accessory is either independent or considered as an accessory crime. Examples of accessory to crime in the digital environment are also discussed in the form of accessory subordinate to the main crime and accessory independent of the main crime. In accessory subordinate to the main crime, we can mention examples such as crimes against the confidentiality of data and systems, crimes against the accuracy and integrity of data and systems, theft and fraud related to computers. Accessory independent of the main crime in examples such as crimes against public ethics and chastity and examples of criminal content can also be analyzed.

Supporting civilians in armed conflicts is one of the important issues that has always been the subject of debate. This article examines the approach of jurisprudence and international criminal law in protecting civilians in armed conflict. The current article is descriptive and analytical and the mentioned question by using the library method has investigated. The findings of the article indicate that the protection of civilians and the necessity of separation between military and civilian forces is one of the fundamental principles of humanitarian rights in international law. The guarantee of protection of civilians against attacks, creating fear and panic among the civilian population and using poisonous and mass killing weapons are prohibited and to take precautionary measures in military attacks in order to protect the lives of civilians is necessary. In Islam, the principle of separation of military personnel in armed conflicts is recognized. The basis of this principle is verse 190 of Surah Al-Baqarah, which according to the clear implication of this verse, war is reserved for those who are actually in fighting engaged. In international humanitarian law, civilians in general and especially children and women are protected. In Islam, people such as women, children and the elderly who are not actually soldiers are supported. As a result, the protection of civilians both in religious teachings and in international humanitarian law is emphasized.

One of the controversial topics of Ta'zir is the issue of the amount of Ta'zir. A problem that faces two completely opposite approaches. In the first approach, some jurists have expressed different and sometimes irreconcilable theories about the amount of Ta'zir by simply relying on the words of some narrations or by following their previous jurists, which makes it impossible to achieve a single theory. In the second approach, other jurists, according to other Hadiths and also the content of the Hadiths of Ta'zir, consider it indefinite without determining the amount and it is absolutely at the discretion of the imam or ruler to determine its amount according to expediency. Ta'zir is a punishment whose amount is not specified in shari'a, so the main basis of Ta'zir is its "non-determinedness". There is disagreement about whether ta'zir is exclusive to flogging or includes other punishments, some consider Ta'zir exclusive to flogging, in contrast, the famous Shiite and Sunni jurists believe that Ta'zir is not intended for flogging. From the appearance of hadiths, this meaning is not taken.