- سال چهاردهم شماره 1 (پیاپی 27، بهار و تابستان 1402)
- تاریخ انتشار: 1402/05/17
- تعداد عناوین: 12
قانون کاهش مجازات حبس تعزیری در سال 1399 با اهدافی متفاوت ارفاقاتی را برای مرتکبان جرایم تعزیری از قبیل سرقت منظور داشته غافل از اینکه این حجم از تساهل می تواند آثار نامطلوبی در بعد امنیت اجتماعی به بار آورد. قابل گذشت اعلام شدن سرقت های خرد برای نخستین بار، کاهش درجه مجازات تعزیری، گسترش اختیارات قضات در امر تخفیف و تبدیل کیفر مرتکبان، برداشتن وصف جزایی شروع به جرم سرقت خرد و توسعه نهادهای مساعد، از مهم ترین چالش های قانون کاهش در خصوص جرم سرقت است. این حجم از مدارا در برابر سارقان نه تنها پیشگیری کیفری از جرم سرقت را دشوار می سازد، به نوعی رویکرد تشویقی نیز داشته و جسارت مرتکبان را دوچندان خواهد ساخت. انعطاف پذیری نظام کیفری در برابر جرایم خرد و مجرمان اتفاقی اگرچه می تواند رویکرد قابل دفاعی باشد اما وضعیت ساخته شده توسط قانون کاهش مجازات حبس تعزیری برای مقابله با جرم سرقت خرد بسیار آسیب زا بوده و اصلاح آن اجتناب ناپذیر است.کلیدواژگان: جرم، سرقت، حبس، کیفرگذاری، قابل گذشت
قانونمندی و قضامندی، دو شاخص بنیادین «دادرسی عادلانه» است. قانونمندی اقتضاء می کند که نهادهای حقوق کیفری از قواعد قانونی تبعیت کند و قضامندی به معنای اعمال فرایند قضایی عادلانه برای مجازات می باشد. از لحاظ عملی، چالش های متعددی ملاحظه می شود که توسل به شیوه استجازه(استیذان) برای «دور زدن قوانین موجود» از جمله آنهاست. مروری بر مدیریت قضایی روسای قوه قضاییه نشان می دهد که آنان به دلیل تعلق به دیدگاه های فقهی و ناباوری به سازوکارهای حقوقی،گاهی به جای علت شناسی مشکلات و چاره جویی از مجاری قانونی، با اذن از رهبری کوتاه ترین راه ممکن را برگزیده اند. درحالی که قوانین، سازوکار حقوقی رفع خلاء ها را تبیین کرده است. در مقاله پیش رو، مواردی از استیذان قضایی و مبانی حقوقی آنها بررسی شده است. یافته مقاله آن است که با وجود سازوکارهای قانونی برای رفع نیازهای تقنینی قوه قضاییه، هیچ دلیل موجهی استیذان از رهبری را توجیه نمی کند و تمسک به بند هشتم اصل 110 ق.ا تحت عنوان «حل معضل نظام» به دلیل عدم احراز شروط سه گانه آن، ممکن نیست. بنابراین، استیذان قضایی، شیوه ای فراقانونی است که با نقض قوانین، از یک سو اصل استقلال قوا، جایگاه مجلس و وجه جمهوریت نظام را تضعیف می کند و از سوی دیگر، اصل قانونمندی دستگاه قضایی را زیر سوال می برد.کلیدواژگان: استجازه، قانونمندی، قضامندی، حل معضل نظام، دادرسی فراقانونی
پیش بینی جرم با استفاده از آزمون شخصیت شناسی مایرز- بریگز مطالعه موردی دانشجویان دانشگاه فردوسی مشهدصفحات 63-88
پیش بینی جرم با تاکید بر متغیرهای مکانی، فردی و اجتماعی جرم زا به دنبال اتخاذ رویکردهای پیشگیرانه و از بین بردن شاخص های خطرزا است. پژوهش پیش رو با هدف ارزیابی پیش بینی جرم با استفاده از آزمون شخصیت شناسی مایرز- بریگز در میان دانشجویان دوره کارشناسی رشته حقوق در دانشگاه فردوسی مشهد انجام شده است. ابزار جمع آوری اطلاعات در این مطالعه، پرسش نامه محقق ساخته و پرسش نامه سنخ نمای مایرز- بریگز یا MBTI است که در آن چهار بعد دوگانه در شخصیت افراد شامل درون گرایی- برون گرایی، حسی- شهودی، فکری- احساسی و قضاوتی- ادراکی مدنظر است. ماتریس همبستگی متغیرهای پژوهش ثابت کرد که احتمال ارتکاب جرم با متغیرهای برون گرایی، درون گرایی، حسی، شهودی، فکری و قضاوتی رابطه معکوس و با متغیر ادراکی و احساسی رابطه مستقیم دارد. با این حال، بررسی اثرات تیپ های شخصیتی در پرسش نامه MBTI نشان داد که متغیرهای احساسی، شهودی و قضاوتی توان پیش بینانه دارند.کلیدواژگان: پیش بینی جرم، شخصیت، آزمون MBTI، استعداد جرم، مدیریت ریسک، پیشگیری از جرم
پیشگیری از جرم به عنوان راهبرد کنشی عمده سیاست جنایی در ایران مبتنی بر یک سلسله قوانین و مقرراتی است که با هدف هنجارمند سازی و نظامند کردن پاسخ های کنشی به جرم وضع گردیده اند؛ این قوانین و مقررات، که مهم ترین منبع «حقوق پیشگیری از جرم» را تشکیل می دهند، با چالش های اساسی مواجه هستند؛ چالش هایی که به مبانی و اصول راهبردی حقوق پیشگیری از جرم آسیب جدی وارد کرده و آن را با نوعی «بحران هویت» مواجه ساخته اند. لذا لازم است در راستای هویت بخشی به حقوق پیشگیری و حفظ جایگاه آن، این چالش ها و آسیب ها مورد مطالعه قرارگیرند. براین اساس مقاله حاضر با استفاده از روش پژوهشی مبتنی بر تحلیل منطقی و هرمنوتیک محتوای قوانین و مقررات مرتبط با پیشگیری و با در نظرگرفتن مبانی و اصول راهبردی حاکم بر پیشگیری از جرم، به بررسی ماهیت و مبانی این چالش ها و راهکارهای آنها می پردازد.کلیدواژگان: حقوق پیشگیری، جرم شناسی پیشگیری، سیستم حقوقی ایران، چالش ها، راهکارها، اسناد بین المللی
با شکل گیری نظام جمهوری در افغانستان در دسامبر سال 2001 میلادی و استقرار نیروهای حافظ صلح و تصویب قانون اساسی در این کشور، جامعه جهانی به ارایه کمک های بلاعوض گسترده ای برای تامین امنیت و بازسازی افغانستان متعهد گردید. از سوی دیگر با توجه به سیاست جنایی سازمان ملل متحد برای مبارزه با فساد که در کنوانسیون سازمان ملل متحد در سال 2003 میلادی منعکس شد، اقدامات متعددی در نظام حقوقی افغانستان برای همکاری بین المللی در پیشگیری فساد صورت گرفت که به دلایل مختلف توفیقی در کنترل فساد در این کشور به دست نیاورد. در این مقاله علاوه بر تحلیل سیاست جنایی تقنینی افغانستان در برابر فساد اقتصادی، چالش های پیشگیری و مقابله با فساد در افغانستان علی رغم تصویب کنوانسیون سازمان ملل متحد علیه فساد و مقررات ملی متعدد در کنترل فساد اقتصادی بررسی شده است.کلیدواژگان: سیاست جنایی تقنینی، فساد اقتصادی، کمک های بین المللی، رشوه خواری، سیاست جنایی افغانستان
«تجاوز جنسی» در غالب کشورهای دارای نظام حقوقی کامن لا به صورت «رابطهجنسی با یک زن از طریق اعمال زور، اجبار و فشار و برخلاف رضایت او» تعریف شده است. تعریف مذکور نشانگر نقش مهم «فقدان رضایت» در تعریف رابطه جنسی به مثابه «تجاوزجنسی» است. هدف از پژوهش حاضر، تبیین مفهوم «رضایت» در تجاوز جنسی در پرتو رویه قضایی در نظام های حقوقی ایران و نیوزیلند است. در بخش میدانی پژوهش حاضر که با استفاده از روش توصیفی- تحلیلی صورت گرفته است، از روش تحلیل محتوای کیفی با نمونه گیری هدفمند از 40 پرونده کیفری با موضوع تجاوز جنسی در محاکم ایران (بین سال های 1383 تا 1397) و نیوزیلند (بین سال های 2007 تا 2018) استفاده شده است. یافته ها نشان می دهند که مواردی چون کلیشه های جنسیتی مردانه، تفاوت در سطح و میزان رضایت، تفاوت درکیفیت آشنایی طرفین و... از جمله معیارهایی هستند است که دریافت قضات از مفهوم رضایت در پرونده های تجاوزجنسی را جهت می دهند.کلیدواژگان: تجاوز جنسی، تفاسیر قضایی، رضایت، مطالعه تطبیقی، ایران و نیوزیلند
بنا بر تفسیری اشتباه از قواعد فقهی، در قوانین مصوب مواردی دیده می شود که بر خلاف شرع به مامورین اجازه داده شده است از تجهیزات نظامی استفاده کنند و چنانچه صدمه ای نیز وارد آید، مسیولیتی برای مامورین یا سازمان مربوطه متصور نیست. در تحقیق پیش رو با روش تحلیلی- تفسیری و با بررسی مستندات فقهی و قانونی روشن شد برخی مواد قانونی در «قانون به کارگیری سلاح 1373» و «قانون مجازات اسلامی 1392» در عمل باعث نقض حقوق بزه دید گان مقصر در احقاق حق شده است. در این راستا، پیشنهاداتی از جمله اصلاح برخی موارد مواد 3 و 6 قانون به کارگیری سلاح که در غیر از موارد مهدورالدم و جرایم تعزیری، به کارگیری سلاح را تجویز کرده است، مطرح شده است و بر این مبنا پیشنهاد شده در مواردی که بزهدیده مقصر مستحق مرگ نیست، جبران خسارت، توسط مامور (در فرض تقصیر) یا بیت المال صورت گیردکلیدواژگان: بزه دیده مقصر، دیه، مهدورالدم، قاعده تحذیر، اقدام علیه خود
براساس قاعده ملازمه، عقل، حکم شریعت را و نیز شریعت، حکم عقل را تایید می کند. پژوهش حاضر با روش توصیفی- تحلیلی و با تکیه بر قاعده یادشده در تکاپوی مشروعیت بخشی به گذار از کیفرهای بدنی است؛ زیرا عقل انسان معاصر که در اسناد حقوق بشری تجلی یافته، کیفرهای بدنی را برنمی تابد. دراین باره، از آنجا که بر مبنای قاعده تلازم، یافته های عقل به منزله حکم شریعت اند و همچنین، شریعت هم گام و هم خوان با عقل است، باید احکام فقهی را در پرتو خوانش های امروزین از مقاصد شریعت (جان، عقل، کرامت، انصاف، عدالت و...) بازخوانی کرد. زیرا درک انسان از این مفاهیم پویا است و باید به برداشت های عقلایی هر نسل از این مفاهیم اهتمام ورزید. بنابراین، احکامی که امروزه مخالف با عقل محسوب می شوند، به حکم شریعت باطل اند. این راهکار موجب می شود که اولا؛ قاعده مورد بحث برای انسان امروز عینیت یابد و ثانیا؛ بتوان در چارچوب آموزه های دینی در اجرای کیفرهای خشن بازنگری کرد.کلیدواژگان: قاعده ملازمه، حقوق بشر، کیفرهای تعذیبی، مقاصد شریعت، حدود و قصاص
یکی از اصول راهبردی که در فرانسه و آمریکا تصریح و در قانون ایران تصریح نشده، اصل ترافعی است . اصل ترافعی به این معنا است که در فرآیند کیفری ، ادله و تحقیقات باید به اطلاع متهم رسیده و آزادانه مورد بحث قرار گیرند. در مرحله تحت نظر ، امکان به خطر افتادن حقوق مظنون بیشتر است. با نهادینه شدن این مرحله ، جلوه های اصل ترافعی، شامل حق بر آگاهی و اطلاع از موضوع اتهام و حقوق دفاعی، داشتن مترجم، حق سکوت، استفاده از معاضدت وکیل و حق بر شنیده شدن مورد توجه قرار گرفته و با توجه به تفاوت نظام های رومی ژرمنی و کامن لا از منظر هر دو نظام تحلیل شده است . چالش های مهمی جهت تحقق کامل اصل ترافعی در ایران وجود دارد. هرچند در تحولات قانون 1392 شاهد حرکت به سمت رعایت نسبی اصل ترافعی و پذیرش جلوه هایی از آن هستیم، ولی کماکان با وضعیت مطلوب فاصله دارد.کلیدواژگان: اصل ترافعی، تحت نظر، حق بر آگاهی، حق بر وکیل، حق بر شنیده شدن، حق سکوت
بررسی وضعیت خرده فرهنگ خشونت کشتیگران جوان و نوجوان با تکیه بر مفهوم جابجایی فرهنگی(مطالعه ی موردی شهرستان مشهد)صفحات 249-277
پژوهش حاضر با هدف بررسی وضعیت خرده فرهنگ خشونت کشتی گیران نوجوان و جوان شهرستان مشهد به انجام رسیده است. گردآوری داده ها در این پژوهش توصیفی تحلیلی به دو روش کتابخانه ای و میدانی صورت گرفته است. حجم نمونه پژوهش به وسیله آزمون کوکران برابر با 170 تعیین شده است، در نتیجه به منظور سنجش وضعیت خرده فرهنگ خشونت جامعه آماری مورد مطالعه تعداد 170 ورزشکار از 13 باشگاه ورزشی واقع در مناطق مختلف مشهد به صورت تصادفی مورد بررسی قرار گرفته اند. بر اساس یافته های پژوهش بیش از 40% نمونه ها دارای خشونت بالا بوده اند. در مورد تاثیر متغیرهای مستقل پژوهش بر وضعیت خشونت نمونه ها باید بیان داشت: متغیرهای محیط باشگاه ورزشی و گروه همنشینان ارتباط معنی داری با وضعیت خشونت نمونه ها داشته اند، درحالی که میان محیط محل سکونت نمونه ها با وضعیت خشونت ایشان ارتباط معنی داری ملاحظه نگردید.کلیدواژگان: باشگاه های ورزشی، جابجایی فرهنگی، خرده فرهنگ خشونت، خشونت، کشتی
یکی از رایج ترین اقسام خشونت خانگی، خشونت جنسی ارتکابی از سوی شوهر است؛ با این حال، قوانین ایران در قبال این موضوع ساکت اند. این پژوهش برای پاسخ به این پرسش که «دادسراها و دادگاه ها در قبال ادعای بزه دیدگی جنسی زنان در بستر ازدواج چه واکنشی نشان می دهند؟» انجام شده است. داده ها از طریق مصاحبه های عمیق با بزه دیدگان، وکلا و قضات، تحلیل محتوای پرونده ها و مشاهده های غیرمشارکتی گردآوری شده است. یافته ها نشان دادند که در کنار رویه غالب دادسرا مبنی بر اجتناب از به رسمیت شناختن خشونت جنسی زناشویی، برخی مقامات دادسرا از عمومات قانون مجازات برای تعقیب آن بهره می جویند. در دادگاه ها، رویه سخت گیرانه تری وجود دارد و بیشتر پرونده ها بدون حکم محکومیت مختومه می شوند که اصلی ترین علت آن، برداشت های سنتی از مفهوم تمکین است. نهایت آنکه، علی رغم اقدامات حمایتگرانه معدودی قضات، مادامی که بزه دیدگان از پشتیبانی صریح قانون محروم باشند، حمایت های قضایی پراکنده در توقف خشونت علیه آنها کافی و موثر نخواهد بود.کلیدواژگان: بزه دیده، خشونت جنسی علیه همسر، دادسرا، دادگاه کیفری، نهادهای عدالت کیفری
ریشه یابی چالش های فقهی و حقوق بشری ماده 91 قانون مجازات اسلامی 1392در باب مجازات های سالب حیات نوجوانانصفحات 311-335
وضع ماده 91 قانون مجازات اسلامی 1392 ازجمله تلاش های قانون گذار در راستای انطباق قانون با دیدگاه های رایج فقهی و اسناد حقوق بشری است؛ اما ماده دارای ابهامات و دشواری هایی، هم از منظر فقهی و هم از منظر حقوق بشری است. امکان تفسیر ماده به اینکه اصولا از بالغ زیر 18 سال، سلب حیات می شود، مگر در موارد استثنایی؛ باز بودن دست دادرس در اثبات اینکه بالغ زیر 18 سال مشمول موارد استثنایی نیست؛ بی توجهی به شخصیت بالغ زیر 18 سال در باب مجازات های سالب حیات و مبهم بودن مجازات جایگزین کیفر سالب حیات، از جمله آن ها است که در مقاله حاضر با استفاده از منابع کتابخانه ای (قانونی، فقهی، حقوقی و آراء قضایی) و به روش توصیفی-تحلیلی شناسایی شده و پس از نقد فقهی و حقوق بشری، ریشه یابی شده است. در نهایت، راه حل پالایش قانون از این سنخ مشکلات، پیشنهاد شده است.کلیدواژگان: نوجوانان، مجازات سلب حیات، کمال عقل، چالش فقهی و حقوق بشری
The Challenges of Criminalizing "Petty theft" Through the Law on Reducing the Penalty Imprisonment 2019Pages 7-31
The Law on Reduction of Penalty Imprisonment in 2019, with different goals, intended tolerances for the perpetrators of penal crimes such as theft, unaware that this amount of tolerance can have adverse effects in terms of social security. The announcement of petty theft for the first time, reducing the degree of punishment, expanding the powers of judges in the matter of reducing and converting the punishment of the perpetrators, removing the criminal description of the crime of petty theft and developing favorable institutions are among the most important challenges of the reduction law regarding the crime of theft. Although the flexibility of the criminal system against petty crimes and random criminals can be a defensible approach, the situation created by the reduction law to deal with the crime of petty theft is very traumatic and its correction is inevitable.Introduction
The Law on Reduction of Imprisonment Punishment approved in 2019 has made important changes in the field of crimes punishable by Ta'zir and the way of determining the punishment for them, and the scope of these changes has affected the widespread way of punishing the crime of theft. What provisions or facilities this law has provided in relation to the crime of theft, which at least theoretically has been introduced as the factor (or at least one of the most important factors) of the increase in theft in the society, requires an independent research or study. This issue, along with the fact that the reduction law was approved in 2019, and so far not much research has been done on the dimensions and aspects of this law and its relationship with the crime of theft, can show the necessity of conducting and innovation of the current research. The aim of the current research is to analyze the law on reducing the punishment of penal servitude approved in 2019 in relation to theft, especially petty theft, and the position of this law in punishing the crime of theft. Did he mean the crime of theft, especially petty theft? And in the second place, what harms and challenges have these measures faced and what effects will it have on the punishment and dealing with petty theft in the society?Methodology
By adopting a critical approach and using descriptive and analytical methods and library tools, this research seeks to find an answer or answers to the above questions, and in carrying out this mission, it is necessary to provide a brief explanation about the scope of the research from two perspectives; First, explaining the legal scope of the concept of "petty theft" and then examining the objectives of the approval and the contents of the Law on Reduction of Taziri Imprisonment approved in 2019 in a brief way.Results and discussion
The Law on Reduction of Penalty Imprisonment approved in 2019, with the set of predictions and measures that it contains in the direction of decriminalization (contrary to the title of the law which only refers to imprisonment) in the crimes subject to Tazeer, faces serious challenges in terms of justifying deterrence of punishment. This issue and the high volume of these crimes and their lack of control will cause the public order of the society to be seriously damaged and we will witness the decline of the effectiveness of criminal laws regarding this category of petty theft. Measures such as the inclusion of four petty thefts in the number of punishable crimes, reducing the degree of punishment for petty theft, increasing the possibility of reducing and converting the punishment, as well as benefiting from favorable institutions for the perpetrators of petty theft, can be considered the most important changes of the Law on the Reduction of Petty Theft approved in 2019. brought This amount of tolerance and tolerance in punishing criminals may not cause a big problem for the perpetrators of some minor crimes such as insult, defamation or even destruction, because we are less likely to face the phenomenon of "professional criminals" in such crimes, and therefore reducing and converting their punishment can It can even provide some criminological goals, but regarding petty theft, it can cause an increase in theft.Conclusion
The most important legislative solution to overcome the existing problems is to amend the law in such a way that, first, the beginning of petty theft is re-defined as a punishment and the perpetrators of petty theft are punished according to their behavior. Second, the arbitrary forgiveness of petty crimes, which also includes petty theft, is another important challenge that deserves attention. Although the increase of expungement crimes in line with restorative justice programs can be defensible, but the legislator, by placing a note, half the punishment determined for all expungement crimes, regardless of the subject matter, the importance and deterrent power of the punishments, which are determined based on the principle of proportionality between the severity of the crime and the type and amount of the punishment. It cannot be considered acceptable to reduce what has been done, therefore the principle of proportionality has been violated and deserves to be corrected. Third, with the process that the legislator has taken in the law on reducing the punishment of penal servitude in order to reduce the punishment of imprisonment and turn it into alternative punishments, the most important example of such punishments is a fine, among the general crimes, petty theft has the most negative effects. It comes with; Because this method adopted by the legislator has caused petty thefts due to the fact that they are generally forgivable and their punishment has been reduced by half (in the implementation of the supplementary note to Article 37 of the Criminal Code) and also with the powers that the judicial authority has in order to benefit the perpetrators. It has the qualities of a judicial abbreviation, in practice, it causes the general punishment of the perpetrators of petty theft to be very short-term imprisonment or actually to be turned into a fine.Keywords: Crime, theft, imprisonment, Punishment, Forgivable
Extralegal proceedings: A critical examination of the foundations of judicial authority in the light of the Constitution lawPages 33-62
Legality and justice are two fundamental indicators of "fair trial". Legality requires that criminal law institutions follow legal rules and justice means applying a fair judicial process for conviction and punishment. There are many challenges, which is one of them, resorting to the method of Estizan to circumvent the existing laws. A review of the judicial management of the heads of the Judiciary shows that instead of resorting to legal channels to solve the challenge, they have chosen the shortest path with the permission of the leadership. While the laws have shown the legal ways to eliminate the loopholes. In this article, the cases of Estizan and their basics are first examined. The finding of the article is that despite the existence of legal mechanisms to meet the legislative needs, it does not justify the legitimate reason for asking Estizan, and it is not possible to refer to Article 110 of the Constitution under the title of "Mozal’e Nezam" due to the lack of its conditions. Therefore, Estizan is an extra-legal method that contradicts the laws and it weakens the position of the parliament and also questions the legality of the judicial system.Introduction
Criminal law is subject to the law in all its stages, including criminalization, sentencing, proceedings and execution of criminal sentences. The legality of criminal law is the guarantor of the rights and freedoms of individuals, and its judiciary requires that any charges, proceedings, issuance of criminal sentences and their execution be pursued only through competent judicial authority. This important matter, which under the title of legal and judicial principle of criminal law, includes substantive and formal criminal law, is clearly stated in several principles of the Constitution law including Principal 36, 37, 159, 169 and Article 2 and 12 of the Islamic Penal Code and Articles 2 and 4 of the Criminal Procedure Law. Compliance with the law in all stages of criminal proceedings is one of the first indicators of fair proceedings.
Despite what has been said, sometimes, instead of following the legal path to solve the problems and meet the legal needs of the judicial system, the high judicial authorities have seen the solution in obtaining special powers from the leadership. There are many examples of estijazeh, or to be more precise, judicial permission in the history of the judiciary.
Regardless of the subject of each of judicial permissions, resorting to this method of solving the problem can be considered as a result of confusion, populism and lack of faith in legal processes at the head of the judiciary. In addition, getting closer to the top of the power pyramid and getting ahead in proving dependence and loyalty are among the motivations that make legal processes lose their color in front of extra-legal methods such as estizan.
In the first part of this article, we discuss the cases of judicial permissions in the last four decades. Then, in the second part, we will discuss the legal analysis of the judicial permission in the light of legal principles.Methodology
This research has been done by descriptive-analytical method and studying the laws and regulations of legal system in the form of documents and libraries.Results and Discussion
In the past four decades, sometimes the heads of the judiciary have resorted to the use of leadership powers to resolve judicial problems based on necessity and expediency. Sometimes eliminating the void of the lack of law and sometimes overcoming the obstacles related to the existence of a law has been the reason for judicial permission, which ironically, all cases of judicial permission are related to the realm of criminal law.
Failure to submit appropriate bills to the legislature and resorting to the method of judicial permission and benefiting from the unique position of the first person in the country may be considered a simple and fast method, but there is much room for reflection in its legality and usefulness. From the point of view of legality, according to Principal 158 of the Constitution, the only way to meet the legal requirements of the judiciary is to "submit appropriate bills" to the parliament. Therefore, neither in the constitution nor in the normal laws, there is no other way, including permission from the leadership. The only possible legal justification for permission from the leadership is paragraph 8 of Article 110 of the Constitution. It is deduced from Article 27 of the Internal Regulations of the Majma’e Tashkhise Maslahate Nezam, that the head of the Judiciary, like the minister or the head of any government or public institution, can refer to the leadership to solve the problem identified by him. However, the requirement for adopting this method is to meet the three conditions of the existence of the Mozal, its intractability through normal methods, and its solution through the Majma’e Tashkhise Maslahate Nezam.
In terms of the condition of the existence of the Mozal, it is clear that in some cases, the Mozal is basically related to the failure of the current head of the judiciary to submit the bill to the parliament on time. In other cases, for example, in dealing with the enemy's economic war through quick and decisive dealings with economic disruptors and corruptors, it has been used as a justification for forming special courts. And deep thinking about various causes and factors of delaying proceedings and extensive economic and organizational corruption, seeks to solve the Mozal in quick and harsh proceedings at the cost of violating the principles and standards of fair proceedings.
Regarding the other condition of resorting to the mechanism of paragraph 8 of Principal 110 of the constitution law, i.e. the Mozal cannot be solved by normal means, it should be said that in all the requests made, the normal way to solve the problem is to present a bill to the parliament for approval or amendment of the necessary laws. But the heads of the judiciary, instead of thinking about solving the issue through normal means, have gone directly to the leader for Estizan.
Finally, in cases of Estizan, the leadership did not refer the matter to the Majma’e Tashkhise Maslahat and he agreed to the Estizan by trusting the heads of the judiciary appointed by them. Of course, the leadership's emphasis on observing the speed, justice and thoroughness of the rulings of the special courts to deal with the crimes of economic disruptors and corruptors speaks of his worries and concerns regarding judicial issues.Conclusions
According to what has been mentioned, it can be said that if the only possible justification for Estizan is Article 110 Article 8 of the Constitution, then at least the conditions stipulated in that Article have been neglected. Undoubtedly, resorting to such special and exceptional methods is spending from the leadership position to pass the legal requirements, and it is hoped that the judiciary will stand up to its duties instead of resorting to such methods from existing legal channels. And the leadership should also guide all the ruling powers and institutions in this direction and prohibit them from resorting to ways of circumventing the law, whose corruption and ill effects are not hidden from the scholars.Keywords: Estijazeh, criminal legality, Mozal’e Nezam, independence of powers
Crime Prediction Using the Myers-Briggs Personality TestCase Study of Ferdowsi University of Mashhad StudentsPages 63-88
Crime prediction, by emphasizing the spatial, individual and social criminogenic variables, seeks to adopt preventive approaches and eliminate criminogenic factors. The present study was conducted to evaluate the crime prediction in the light of the Myers-Briggs personality test among all undergraduate law students at Ferdowsi University of Mashhad. The data collection tools in this study are the researcher-made questionnaire and the Myers-Briggs questionnaire or MBTI, in which four dual dimensions of personality are considered, including introversion-extroversion, sensing-intuitive, thinking-feeling and judging- Perceiving.The correlation matrix showed that the probability of committing a crime is inversely related to the variables of extroversion, introversion, sensory, intuitive, intellectual and judgmental and is directly related to the perceptual and emotional variables. Examining the effects of personality types in the MBTI questionnaire showed that feeling, intuitive and judging variables can predict crime. The positive coefficient of feeling personality variable in stepwise regression shows that this variable can predict crime. However, the negative coefficient of intuitive and judging personality types indicates that these two personality types can predict not committing a crime. As a result, people with feeling type commit crimes due to emotions and low self-control. On the contrary, rational decision-making, realism and focusing on the truth in people with intuitive and ethical personality type, high self-control and logical decisions in people with judging personality prevent committing crimes.Introduction
Crime prediction as a statistical/mathematical concept estimates the probability of committing a crime through the collection and analysis of individual information and demographic variables (Eck et al, 2005: 33). Thus, crime prediction predicts human behavior and estimates the probability of crime by considering various conditions that are effective in committing a crime. Based on this, it should be said that "crime prediction is a branch of futurology that studies hypothetical futures in order to prepare for dealing with criminal behavior" (Gholami and Barzegar, 2017: 10). Since identifying important methods for crime estimation is one of the basic concerns and issues in dealing with crime, today crime prediction is considered as one of the most important tools for identifying dangerous variables and adopting preventive and restorative measures.
The findings of many studies in criminology and criminal psychology have proven the role of personality traits in committing crimes (Barjali and Abdulmaleki, 2013: 58). The psychological findings of criminal behavior also show that many people who have personality disorders and show maladaptive behaviors commit crimes in different situations (Sotoudeh et al., 2014: 81). According to Ising's theory, criminal personality depends on the existence of at least two ability variables, extroversion, psychopathy and psychopathy (Eysenck, 1952: 349). According to some other opinions, on the one hand, psychopathic extroverts, in terms of personality, are the people who have the most criminal talent, and on the other hand, psychopaths are always prone to commit crimes in terms of personality; Because as a result of unknown physiological factors, they become callous, vengeful, callous and unfeeling (Kampen, 2009: 16).
Therefore, considering the important role of crime prediction in identifying risk variables, risk management and adopting preventive mechanisms, and the important effect of personality types on lawfulness or law-breaking of people, this research, while emphasizing on crime risk management and using interdisciplinary approaches, tries to use from the Myers-Briggs personality test and in the form of an experimental study, to examine the relationship between personality types and the likelihood of crime among undergraduate law students of Ferdowsi University of Mashhad.Methodology
This research is descriptive and correlational in terms of applied purpose and method. Correlation research is one of the descriptive research methods that examines the relationship between variables based on the research objective. Therefore, the correlation method is used for the two main purposes of discovering the relationship between variables and for predicting the subject's score in one variable from its scores in other variables. The statistical population of this research is undergraduate law students at Ferdowsi University of Mashhad. To investigate the relationship between the Myers-Briggs model theory and its application in predicting crime, the 60-question MBTI questionnaire was used. This questionnaire, which is actually the same questionnaire derived from Myers-Briggs model theory, was presented by these two researchers. Each question contains two propositions to which the respondent chooses the desired answer. In fact, there are no right or wrong answers in the MBTI questionnaire. This questionnaire has been used as a standard and valid global questionnaire in many studies and its validity and reliability have been confirmed. (Harrington and Loffredo, 2001; Steel and Young, 2008; Kim and Hon, 2014; Oh et al, 2007; Rushton et al, 2007) At the same time, to analyze the relationship between personality theory and predicting crime, it is necessary to measure the dangerous state/propensity for crime. be considered; Because the relationship between personality theory and crime prediction cannot be obtained without the criterion of criminal capacity. For this reason, in the questionnaire created by the researcher in ten separate questions, petty crimes such as minor destructions, cheating in the exam, littering, driving without having a valid license, etc. were considered as a measure of criminal aptitude. At this stage, to measure the validity of the researcher-made questionnaire, the opinions of experts and experts were obtained.Results and Discussion
The results show that the dependent variable - committing a crime - with extroversion (-0.038), introversion (-0.104), sensory (-0.050), intuition (-0.152), intellectual (-0.263) variables and judgmental (-0.283) has an inverse relationship and a direct and significant relationship with perceptual (0.152) and emotional (0.141) variables. The significance level for emotional, intuitive and judgment independent variables is less than 0.05 (P-Value<0.05) and as a result, these three variables have the ability to predict crime. The positivity of the coefficient of the emotional variable indicates its positive effect on crime, and the negativity of the intuition and judgment coefficients indicates their negative effect on crime.Conclusions
Based on statistical findings, in the first step, emotional personality type has a significant positive relationship with crime. The emotional personality approach, which represents the actions of the peripheral nervous system and a reflection of the biological readiness for physical reaction to stressful events (Dosant, 1390: 111), includes features such as temper tantrums, anger, and dissatisfaction. Thus, emotional personality shows the intensity of emotional reactions in forms such as aggression and dissatisfaction. Therefore, emotional personality can be considered aligned with some variables proposed in Pinatel's criminal personality theory. To examine the transition from thought to action, Pinatel believes that each person's personality has five variables, which consists of a central core and four variables. The four variables around the central core are egoism, temper tantrums, aggression and indifference. According to him, when the two or three mentioned variables are formed around the central core, the probability of committing a crime will increase (Najafi Abrandabadi and Hashembeigi, 2017: 105). Therefore, neuroticism, which consists of emotions such as anger, temper tantrums, and selfishness, can be analyzed in the form of Pinatel's criminal personality theory. The correlation matrix of the research variables showed that in the statistical population of the research, the factor of emotional personality has a direct relationship with committing a crime; This means that as people's emotionality increases, the probability of committing a crime increases. However, the important and fundamental point is that in step-by-step regression, the emotional personality approach has the highest power to predict crime. Therefore, in line with many researches in criminal psychology, regarding the statistical population of this research, emotional personality, while being related to crime, can also be effective in predicting crime.Keywords: Crime Prediction, Personality, MBTI Test, Crime Talent, Risk management, Crime prevention
Crime prevention, as a main active strategy of criminal policy in Iran, is based on a series of laws and regulations, acted with aiming at normalizing and systematizing active responses to crime. These rules and regulations, which are the most important source of "crime prevention law", have such limitations and challenges that seriously damaged the fundamentals and strategic principles of crime prevention law and faced it with an "identity crisis". Therefore , it is necessary to study these challenges in order to give identity to crime prevention law and maintain its position. This article, using a research method based on the logical and hermeneutic analysis of the contexts of these rules and regulations and taking into account the foundations and strategic principles of crime prevention, examines the nature and bases of these challenges and their solutions.Introduction
Nowadays crime prevention as a systematic strategy of criminal policy is based on a series of laws and regulations. These rules and regulations as well as practical procedures, which is so called as "crime prevention law", are approved and implemented with the aim of normalizing and structuralizing crime prevention. In Iranian legal system, there are many substantive and procedural laws and regulations including Article 156, Clause 5 of the Constitution, the Improving Administrative Health and Combating Corruption Act (2013), the Combating Goods and Currency Smuggling Act (2012), and the Crime Prevention Act (2016), which have passed with the aim of constitutionalizing, normalizing the preventive criminological doctrines and systematization of the active strategy of criminal policy to control crime. But analyzing the contexts of these rules shows that the legislator has ignored many of the principles, bases and strategies of crime prevention in the process of approving or amending them, which has faced crime prevention law with fundamental challenges in Iran. So that, they have shaken the existence of crime prevention law and raised many questions such as: what are the bases of these challenges, is it possible to talk about crime prevention law as an organized, scientific and systematic criminal policy strategy in the field of criminal policy? Are these challenges not the reason for the existence of "identity crisis" in crime prevention law? This article, taking into account the bases and strategic principles of crime prevention, examines the nature, foundations and solutions of these challenges in several axes of procedural, substantive and substantive-procedural ones.Methodology
This article examines the nature, foundations and solutions of the basic challenges of crime prevention law in Iran by using the method of logical and hermeneutic analysis of the contexts of crime prevention laws and regulations.Results and discussion
This article has examined the basic challenges of crime prevention law in Iran based on the foundations and strategic principles of crime prevention.The findings of this research shows that these challenges are of different nature, some of them are procedural, the other ones are substantive and the third ones are procedural-substantive. lack of comprehensive, integrated and independent monitoring and performance assessment system, lack of coherence and integrative policy-making and management system are the most important of first ones. Lack of adequate and effective implementation guarantee, risk and security-oriented crime prevention law are of the second ones. Non transparency of crime prevention law, duty or conduct (not-result) based preventive obligations of the states and non- independence of crime prevention law (dependence on classic criminal law and criminology and pressure and interest groups) are of. multiple nature ones.Conclusion
The existence of strategic and fundamental challenges has faced Iranian crime prevention law with some of "identity crisis ". So that, we can not speak of crime prevention law as an organized, scientific and systematic active strategy of criminal policy. In order to give identity to crime prevention law and maintain its independence it is necessary,that the structure of law-making institutions to be reformed in the first place. The legislator must pay attention to the fundamentals and strategic principles of crime prevention, especially of trans-sectoral, knowledge-based, participatory and solidarity, sustainability and human dignity principles in the second place. It requires that the legislator dissolves all institutions and parallel structures of crime prevention and strengthen the status and credibility of the Supreme Council for Crime Prevention. Two basic actions should be done in this regard: First, the Supreme Council for Crime Prevention, based on the strategic principles, be constitutionalized in the Constitution, and based on that, the normal laws of crime prevention, including the crime prevention act (2010) should be reviewed and reformed. Second, in the case of non-constitutionalization, the objections and substantive or structural problems of the crime prevention act and the Supreme Crime Prevention Council should be resolved by revising and amending the law based on the solutions mentioned in the article. Changing the nature of preventive duty-oriented obligations of governments to result-based ones and criminalizing state crimes and create the necessary judicial structures to deal with the cases of violations of preventive obligations of governments at the national and even the regional or global level is another fundamental step to identification of crime prevention law.Keywords: Crime prevention law, Preventive criminology, Iranian legal system, Challenges, solutions
Evaluation of Afghanistan's legislative criminal policy against economic corruption and its challengesPages 117-142
With the formation of the republican scheme in Afghanistan in December 2001 and the establishment of peacekeeping forces and the approval of the constitution in Afghanistan, the international community committed to providing extensive grants for the security and reconstruction of Afghanistan. On the other hand, according to the criminal policy of the United Nations to fight corruption, which was reflected in the United Nations Convention in 2003, several measures were taken in the legal system of Afghanistan for international cooperation in the prevention of corruption, which were not successful in controlling corruption. In this article, in addition to the analysis of Afghanistan's legislative criminal policy against economic corruption, the challenges of preventing and dealing with corruption in Afghanistan despite the adoption of the United Nations Convention against Corruption and numerous national regulations in controlling economic corruption have been examined.Introduction
In all countries, one of the most important and most necessary duties of the government is to provide public services to citizens. Afghanistan, after the collapse of the Taliban regime and the enormous presence of the international community in the country, has provided a great opportunity to provide such services to its citizens, in order not only to provide the basic needs of the people but could, by using the resources provided and in the framework of procurement contracts, design and implement basic infrastructure projects for the stability, prosperity and economic development of the country. But unfortunately, it did not happen.
American General Inspection Office for the Reconstruction of Afghanistan, known as "SIGAR", announced in a report published in April 2022 that the aid allocated by the United States from 2002 to the fall of the Afghan government for the reconstruction of this country was more than 145.87 billion dollars. (Sigar, 2022: 2).
This study has analyzed the legal criminal policy in the fight against corruption in the first part of the analytical-descriptive method and based on data review and study of sources including documents, laws and reports of evaluation institutions. In the second part, the challenges of fighting economic corruption and the role of not distributing and using the correct international aid in fueling corruption in government institutions and foreign institutions or companies are mentioned.Methodology
This study has analyzed the legal criminal policy in the fight against corruption in the first part of the analytical-descriptive method and based on data review and study of sources including documents, documents, laws and reports of evaluation institutions. In the second part, the challenges of fighting economic corruption and the role of not distributing and using the correct international aid in fueling corruption in government institutions and foreign institutions or companies have been evaluated.Results and Discussion
The findings of this study can be summarized in the following headings.
1.3. Legislative criminal policy in the fight against corruption
Examining the legislative criminal policy and the situation of Afghanistan in the two periods of the republican system, formulating economic criminal strategies and policies, establishing laws and regulations, creating institutions and offices and handing over international obligations shows that policymakers in criminalizing and attracting the cooperation of aid countries have been successful. but in implementing the law and prosecuting criminals, issuing orders and eliminating the roots of corruption, they could not get the satisfaction of citizens and donor countries.
2.3. Establishing laws and challenges to fight corruption
In the last two decades, the Afghan government has enacted several laws in the field of fighting corruption and created legal frameworks in this field. But Afghan leaders have wasted golden opportunities and countless financial and human resources to create, dissolve and integrate anti-corruption institutions. For this reason, legislative policies in the fight against economic and administrative corruption did not have tangible achievements and were doomed to failure.
Inflation and multiplicity of laws on the one hand and merger and dissolution of institutions or their parallel work on the other hand, "challenged and disordered the society and made law enforcers fail.
3.3. Political corruption
Political corruption is the abuse of power by political and government officials in order to secure personal interests with the aim of increasing power or wealth.
The division of government institutions after the Bonn Conference in 2001 among the anti-Taliban warlords was more like business than democratic procedures (Schmeidl, 2016: 8). Members of anti-Taliban armed groups reached high government positions after the Bonn Conference (MacGinty, 2010: 580). Therefore, the security and reconstruction of Afghanistan depended to a large extent on armed groups, and in fact, it can be said that corruption and political deals started from here.
This approach continued to the point where important government institutions were bought and exchanged among them.
4.3. Corruption in the contracts of domestic institutions and foreign companies
Financial corruption cases related to the contracts of government institutions reach hundreds of millions of dollars, which are calculated and signed more than the daily rate. The administrative corruption case in the Ministry of Defense related to the procurement of gasoline worth about one billion dollars remained unfinished in this ministry. Procurement contracts in other ministries, such as the Ministry of Interior Affairs of Afghanistan, had a much worse situation than the contracts of the Ministry of National Defense.
Moreover, foreign nationals living in Afghanistan and foreign institutions and some embassies have also played an undeniable role in financial corruption and misappropriation of donated money. It seems that the following documents are enough to prove this claimant.
Sigar's report on the defendants' cases from 2001-2011 It shows the economic corruption among the companies operating in this country.Conclusion
According to the research done, it seems that Afghanistan's legislative criminal policy in the fight against corruption in the last two decades, it is considered one of the best and most dynamic periods of legislation in the history of Afghanistan; although from the perspective of legislation and accountability in the field of preventing and fighting corruption, including joining the United Nations To deal with corruption. But this policy was faced with various challenges and obstacles due to the political, social and emergency conditions imposed on the country of Afghanistan, which prevented the proper implementation of criminal policy against corruption.
Incomplete criminalization, displacement of laws and institutions created in the fight against corruption, abuse of legal powers, lack of independence of investigative, and judicial bodies, hasty actions in creating parallel anti-corruption institutions, non-registration of private security companies and lack of supervisory authority. It was due to their activities and political corruption, including formal and substantive shortcomings and challenges in the fight against corruption, that the Afghan government collapsed and accepted defeat.Keywords: legislative criminal policy, Economic corruption, International aid, bribery, Criminal policy of Afghanistan
Judicial Interpretations of the Concept of "Consent" in rape; Content analysis of Iran and New Zealand Cases*Pages 143-170
"Rape" is defined in common legal system as a "sexual relationship with a woman through the use of force, coercion and pressure and against her consent". The current research aims to explain the concept of "consent" in sexual assault in light of judicial practice in the legal systems of Iran and New Zealand. In the field part of the current research, which was carried out using the descriptive-analytical method, qualitative content analysis method with a targeted sampling of 40 criminal cases with the subject of sexual assault in the courts of Iran (between 2003 and 2017) and New Zealand (between 2007 and 2018) has been used. The findings show that things such as male gender stereotypes, differences in the level and amount of satisfaction, differences in the quality of acquaintance of the parties, etc., are among the criteria that guide judges' understanding of the concept of consent in sexual assault cases.Introduction
Despite this duality, it is difficult to accept that punishment, as a social institution with a multiple reality, is only influenced by one of the two phenomena of power and culture. Punishment is a social institution that is influenced by them in a systematic relationship with other social phenomena and, of course, affects them.
The fundamental question of this research is how to present a realistic picture of the quality of the interaction between the phenomena of culture and power in the realm of punishment.
The present study tries to answer this fundamental question. The concern of the present research is to provide a framework for a systematic and multiple understanding of punishment. Presenting this framework can provide us with a more accurate picture of the nature and functions of punishment in the social Rape as a crime against physical integrity has always faced harsh criminal reactions. In traditional laws of rape, the principle is on coercion and reluctance using violence to rape and attack a woman, and in most countries rape laws are still based on violence or threats to it; in fact, the perception of rape is its constant association with violence.
On the other hand, the basis of modern rape laws is non-consent, which means that any sexual activity with a person who is not satisfied with the relationship is considered a crime. In rape that is based on lack of consent, it is assumed that the sexual relationship is two-way and based on traditional gender roles based on the will of the parties, and in this relationship the woman has the right to accept or reject it. Therefore, the core of the definitions of aggression is violence, coercion and reluctance, or violence and lack of consent, or both of them.
Since in the modern legal approach to rape, the lack of consent plays a key role in its realization, so one of the main issues is to determine the legal meaning of consent.Methodology
The present research, according to its nature requires the interpretation of textual data, and the researcher has used "qualitative" methodology, and its nature is descriptive-analytical. In order to access the necessary data regarding Iran's cases, the researcher referred to the Public Prosecutor's Office and the Revolution of Tehran, the Library and Document Center of the Judiciary Research Institute, etc. Access to court cases in New Zealand was made possible with the help of one of the professors of the Faculty of Law of Auckland University and during the Research Opportunity at Auckland University. The method used to interpret the data in this qualitative research is content analysis.Results and Discussion
Although the difference between the legal sources of Iran and New Zealand and the existence of stereotypes and rape myths in the minds of judges, especially in traditional systems such as Iran, makes comparison and matching difficult, but by examining the codes from the cases of Iran and New Zealand, categories were obtained that could be similar. They provided the search and comparison between the two countries.
These categories that were obtained by examining the cases of Iran and New Zealand are:1- Judges' gender stereotypes from the history of friendship and previous acquaintance between the criminal and the victim.
2- Sexual and moral history of the victim in the context of judicial interpretations.
3- Men's judicial interpretations of the victims' resistance and its examples.Conclusions
The root of the difference in the approach of the judges in the two legal systems depends on the difference in the legal and ideological foundations. On the other hand, the cultural roots and the deep influence of male stereotypes and ideas on the legislative system and the approach of judges have caused a different understanding of the concept of consent in the judicial system of the two countries.
As a conclusion from this article, the following can be considered:First. The mental stereotypes of the judges, regarding establishing a relationship between the level and history of familiarity with consent/non-consent, are among the most important strategies of judges regarding the interpretation of the concept of consent. Based on this, the general approach of the judges is that the existence of previous acquaintance/communication between the aggressor and the victim is practically interpreted as the consent of the victim to have sex. This issue is practically irrelevant in the New Zealand legal system due to the legality of consensual sexual relations (which naturally does not require prior acquaintance in many cases) and due to the acceptance of marital rape in the legal system of this country.Second. The existence of a bad sexual and moral history of the victim is another factor that judges in the light of which confirms the consent of the victim to establish sexual relations with the aggressor. This issue is not well accepted in the New Zealand judicial system and on the contrary, the victim's bad history has caused her to be considered as a more vulnerable person and has justified the need to support her.Third. The existence of male judicial interpretations of the issue of sexual assault, taking into account cases such as focusing on the victim's defense or lack of self-defense against the aggressor, whose lack of defense, even in cases where the victim surrendered due to fear of further harm, in They have considered the concept of satisfaction. This issue is also considered in the New Zealand legal system with a different approach, and the lack of physical resistance against the aggressor is not considered a proof of consent.Fourth. The existence of the death penalty for the perpetrator of sexual assault can be another reason for the desire of judges to present a patriarchal interpretation of the concept of consent, whether it is that life-threatening punishments are not very popular, both from the perspective of social and criminal effects, and judges consciously or unconsciously They do not want to use this punishment.Keywords: Rape, Judicial Interpretations, Consent, Comparative study, Iran, New Zealand
The right to life or, in jurisprudential terms, the blood of a Muslim is supported by Islamic jurisprudence and assaulting it, except in specific cases, causes criminal and civil liability. But according to a wrong interpretation of jurisprudence rules, in the regulation, it is seen that against jurisprudence, officers can use military equipment according to the legal duty, except for jurisprudential license and if there is any damage, no responsibility is assumed for the officials or the relevant organization. Such an interpretation is also seen in the judicial procedure; in such a way that if a person is harmed while committing a crime, waived the right to complain and the courts also citing some legal articles or by wrongly inferring from jurisprudential rules, do not consider victim to be entitled to compensation or revenge. Future research with analytical-interpretive method, has examined this legal conflict with jurisprudential rules. By examining jurisprudential and legal documents it was finally clarified, some legal articles in the law on the use of weapons 1373 and the Islamic Penal Code of 1392 is against the jurisprudential standards which in practice has caused the violation of the rights of the victims to get their rights. In this regard, uggestions have been made, including the amendment of Article 3 and Article 6 of the Law on the Use of Weapons, which prescribes the use of weapons in the Ta'ziri crimes, and on this basis, it is suggested in cases where the guilty victim does not deserve to die, compensation should be done by the officer (in the case of fault) or Baitul-Mal(Treasury).Introduction
All countries employ police officers to deal with crime and insecurity and grant them the necessary tools and powers according to the law. Since, the police tools may be used to violate the rights of citizens, the adoption of regulation in accordance with international standards and jurisprudential standards (in religious countries) will reduce the wrong use of police tools and endangering the personal and social security of citizens. Therefore, these regulation should clearly and unambiguously predict the correct way of using police tools and equipment and in case of mistake or intentionality of the police officer, he should be dealt with according to the regulation. In Iran, like in other countries, the use of tools and weapons by police officers is expected to deal with accused and criminals. The challenging point of this research is the cases where the police officer causes injuries to the citizens while performing his duty, but the victim does not complain with the idea that he was at the time of committing the crime and is guilty or despite the complaint, the courts also citing some legal articles or by wrongly inferring from jurisprudential rules, do not consider victim to be entitled to compensation or revenge. This is while Islamic teachings have clearly explained the examples of wasting Muslim blood and similar rules, that if it is properly considered in the approved regulation and judicial opinions, the issuance of fair judgments will not be far from reach.
Based on this, in the upcoming research, this issue will be investigated that although a person is committing a crime and violating the prevailing regulation, But other than some specific crimes, his blood is protected by the legislator and should not be subjected to some attacks. On the other hand, police officers have the duty of dealing with disorder and crimes and in some cases, they are obliged to use their police equipment, especially weapons and they may cause injuries to people who are committing crimes as a result of using it that the damage is not proportional to the crime committed, while the officer has done his duty. Of course, in some cases, they may have performed their duties incorrectly. The important question here is that if a citizen is committing a crime, and a police officer shoots at him, is the citizen entitled to a complaint and compensation? Another question in this regard is if the police officers fulfill their legal duty and the victim is not legally entitled to death or physical injury, What is the solution to compensate the victim? Hence, according to these questions, according to the order of being a victim and the ability to compensate for the damage (1), the victim's actions against him/herself (2), the victim's disregard for the warning (3), the confrontation of the victim's negligence or fault and the officers' blame (4) and not wasting the victim's blood and the responsibility of Baitul-Mal (Treasury) (5) is investigated.Methodology
This article with a descriptive-analytical method, examines the compensation of the guilty victim in the assumption of duty by the officers.Results and discussion
According to the legal duty, police officers can use police tools and equipment if necessary. Therefore, if the defendants resist or escape, it may result in physical injuries and death. What is inferred from the relevant regulation, especially the law on the use of weapons, is that police officers are not responsible if they cause injuries by following the mentioned laws and the guilty victim also has no right to claim retribution or compensation. Such an argument can also be seen in the judicial procedure and many decisions have been issued by the courts that the guilty victim is not considered entitled to file a complaint by citing some jurisprudential rules such as Mehdur al-Dam, action against himself or a warning. But in this research, It was investigated and found that the jurisprudential term of Mehdur al-Dam has a specific definition in jurisprudence and the Islamic Penal Code of 1392 and its development is against Islamic jurisprudence. In other words, committing the Ta'ziri crimes as well as some Haddi crimes and crimes against physical integrity is not a reason to consider a person's blood as a waste. Another point is that such cases are not covered by the rules of action against oneself and warning and as a result, in some cases, the officers can be held responsible. Because in the rule of action against oneself, the fault or intention of the victim must have broken the causal relationship between the actions of the officers and the crime so that it can be considered ongoing. The rule of warning cannot allow shooting against the victim, even if she heard the warning, because this rule refers to unintentional crimes. In addition, with a warning, regardless of the type of crime and other conditions, the victim cannot be denied the right to file a complaint. Therefore, according to other jurisprudence rules, if the crime against the victim is intentional, the right to demand retribution is established, and if it is unintentional, the right to demand compensation is fixed.Conclusion
Considering that the guilty victims, in cases that are not Mahdur-Al-dam, and especially that they are committing petty and Ta'ziri crimes; in the first stage, even if the citizens are accused, in order to protect their lives, The use of force by police officers should be limited and in exceptional cases. In the next stage, if the duty of the police officers leads to bodily harm to the guilty victims, Compensation for his damage is more consistent with the teachings of Islamic jurisprudence. In this regard, according to the legal deficiencies, it seems necessary to amend the articles of the law on the use of weapons approved in 1373 such as articles 3 and 6 that prescribe the use of weapons. These legal articles have prescribed the use of weapons in crimes such as arresting a thief, escaping the accused and a prisoner (who has committed a crime other than Article 302 of the Islamic Penal Code approved in 1392), entering and leaving the border, and fleeing cars. So that, In this way, the rights of citizens, even if they are accused, are respected. Another point is that the note to Article 473 of the Islamic Penal Code approved in 1392 should also be narrowly interpreted and considered it to include only military prohibited places in which case, things like the street, road, border, or moving cars will be out of its scope. Of course, until the relevant regulation are reviewed, in cases where police officers perform their legal duties, while warning not to use weapons even if possible, It is possible to assume the responsibility of paying compensation to Baitul-Mal due to the clarity of the Islamic Sharia and the opinions of jurists. In addition, the injured person was not legally entitled to the crime. In other words, with the narrow interpretation of the note of Article 473 as described above, according to the aforementioned article, in the event of the death or injury of the guilty victim, compensation will be the responsibility of Baitul-Mal. It is worth mentioning, in the case of intentional crimes, the situation is clear and the police officer will be responsible according to the law. In non-intentional crimes as well, if the fault of the officers is evident, the guilty person must compensate.Keywords: Victim, Compensation, Officers, Islamic jurisprudence, Act against yourself
Review in corporal punishments in the light of re-reading the rule of coexistence of Reason and ShariaPages 197-219
The meaning of the Mulazemah rule is the overlapping of reasoning and Sharia. That is, whatever the intellect approves of it can also be enforced by the Sharia, and whatever the Sharia accepts, the intellect also supports it. The present research is based on the descriptive-analytical method and relies on the recent reality in the effort to legitimize the transition from violent criminal punishment, a goal that is achieved through deliberation in the discussed base. In this regard, the authors have come to the conclusion that the human mind of today, which can be found in international human rights documents, does not tolerate corporal punishment. Therefore, since based on the discussed rule, the intellectual findings are considered as Sharia rules, then such human rights achievements should be paid attention to. On the other hand, the Sharia is also compatible with reasoning and intellect .In this sense, in order to objectify what has been just stated , the jurisprudence rulings must be reread in the light of the purposes of the Sharia, because the purposes of the Sharia (life, reason, dignity, fairness, justice, etc.) are fixed, but human understanding of these concepts is dynamic and current. Therefore, it must be paid attention to what the intellectual perceptions of each generation is in the mentioned concepts. In that sense, today, the rulings that are considered contrary to reasoning and intellect are invalid according to Sharia law. This solution makes Sharia equal to reason and provides the needs and necessities of today's society. As a result, it is possible to revise the implementation of corporal punishment under the shadow of the discussed rule.Introduction
Among the most prominent approaches in Iran's criminal policy in the last four decades, there has been the use of corporal punishments in the Islamic penal laws, which have been appeared in the form of Hudud, Qisas and Ta’azirat. In this regard, it seems that the idea of their immortality, which is imprinted in the legislator's mind, was one of the most important proofs of immunity from the abolition of these reactions, especially the Hudud and Qisas, during the time. However, the mentioned thought has been associated with numerous philosophical and sociological challenges in these years, both international and national wise. Therefore, such punishments have been criticized from different inner-religious perspectives and also outer-religious perspectives. The current research is also in line with the introduction and expansion of the recent discussion, that is, the criticism of torturous punishments, in an effort to reread a rule that is referred to as "Mulazemah" or "Talazom" in jurisprudence and principles sources. In the works of the predecessors, no independent work can be found regarding the connection of the mentioned rule with the field of punishments. Therefore, the current article is in search of rereading and extending it to this area. Therefore, the most important question of the current research is how to overcome corporal punishment by relying on the principle of Mulazemah.Methodology
This research has been written using the descriptive-analytical method and with the approach of documentarystudies.Results and Discussion
1- Corporal punishments are incompatible with the principles of the contemporary world, including human rights, so international organizations react to how it has been implementing in Islamic countries, including Iran. Also, such punishments have significant consequences for the Islamic society, including the generating of violence. Also, based on the available statistics, the mentioned punishments have not been able to reduce or even control crimes in the society.
2- Islamic Sharia is legible, so it is possible to present a human right reading of it, at least in the discussion of punishments. In this regard, one of the ways of harmonizing Islamic laws and regulations with the rules and principles of human rights is to pay attention to the principle of Mulazemah.
3- The theme of the Mulazemah rule is the overlapping of reasoning and Sharia. That is, whatever the intellect approves is also enforced by the Sharia, and whatever the Sharia accepts, the intellect also supports it.
4- Reasoning and intellect is one of the four arguments and one of the sources of inference in Islamic law.
5- Intellect is a living and dynamic entity that can have different achievements over time. One of today's intellectual achievements is human rights. In this regard, it is not necessary for contemporary mankind to rely on the intellectual findings of ten centuries ago.
6- Islamic law is interpretable. Giving meaning to the recent reality is possible through the interpretation of the rules of Islam in the light of the purposes of Sharia. Due to the fact that only in this way it is possible to meet the needs of every age.
7- Examples of the purposes of the Sharia such as justice, dignity, fairness, etc., are consistent in terms of vocabulary, however the concept and perception of each era can be different from another. Therefore, one should pay attention to the perception of each era of a concept. This solution makes Sharia equal to reasoning and provides the needs and necessities of today's society.Conclusions
As a result, it can be said that today’s traditional reading of the rule of Mulazemah has blocked the possibility of using it, because the premise is that the series of rulings that came from the past eras have reached the hands of today's mankind. In any case, it is equal to reason, and therefore, if man's reason and intellect does not accept a rule in the current days, it is a problem with his understanding. That is, if a rule is written or signed by the Shariah, this ruling is definitely equal to reason, even if he does not understand it at the time. Therefore, a rule such as whipping s is both in accordance with Sharia and in accordance with reason in all times and places.
The writers of these lines believe in the equality of reason and law and the infallibility of this claim, but they have another interpretation of reason and law; A dynamic commentary that affirms the immortality of "the compatibility of reason and Sharia, as well as Sharia and reason". From the point of view of the authors, the meaning of reason in this rule cannot always be the human reasoning and intellect in the age of descent. In other words, although the rulings established or signed were without a doubt equal to the human intellect of that time, but in the sense of closing the case, the rulings are not particularly ungodly like punishments. Therefore, if today’s human intellect does not confirm a ruling, we should not pass this intellectual achievement simply and without reflection. The same event that happened regarding corporal punishments and the human mind does not reflect it today. The proof of the recent claim are the provisions of various human rights documents, in which the last will of the present man is manifested, and today it can be referred to as "Sira Oqala”. Most countries in the world include such considerations in their domestic laws; Because the violation of such rules is associated with the reactions and punitive actions of other actors in the international arena. Therefore, although a topic like human rights in today's sense has never been discussed in the past, but as some jurists have stated, its appearance in today's world cannot be a proof of its invalidity, but can be an example, rather, it can be an example of the reason mentioned in the rule of Mulazemah.
Regarding Sharia, we also believe that in order to recognize Sharia rulings, one must pay attention to the purposes of Sharia law and recognize Sharia rulings in the light of that. The purposes of Sharia include self, religion, reason, justice, human dignity, and anything alike those, which must be included in their criteria to determine whether a ruling can fall under the category of Sharia. For example, in order to determine that a punishment such as stoning is in the category of Shariah, we must weigh it with human dignity, as one of the supreme goals of Shariah. It should be kept in mind that the mentioned purposes are fixed, but human understanding of them is variable. In this way, human perceptions of a word are changeable over time. For example, in the past, a punishment such as taking life was not a violation of human dignity so that its followers would ignore the purposes of the Sharia, but today's intellect does not consider it to a significant extent as an intellectual. Therefore, against the purposes of Sharia, criminal reactions can be considered as historical rulings and appropriate to previous societies. Therefore, it is possible to leave aside the jurisprudence rulings that are contrary to the current state of affairs and, relying on the purposes of the Sharia, reread the texts according to the current time and place. Through such an interpretation, it is possible to consider reasoning with Sharia and Sharia with reasoning. The conclusion is that the alignment of reason and Sharia makes the transition from corporal punishment in today's world possible, so the Islamic legislator should come up with a new reading of the discussed rule in the effort of rethinking the ruling penal policy.Keywords: The Mulazemah Rule, Human Rights, corporal punishment, torture punishments, the purposes of Sharia (Maqasid Shariah), Hudud, Qisas
The Approach Of Criminal Proceeding Systems of Iran,France and the United States to Contradiction Principle at Police Custody StagePages 221-248
The Contradiction Principle is one of the strategic principles stipulated in the introductory article of the French Code of Criminal Procedure and U.S. Judicial Procedure but not specified in the Iranian Code of Criminal Procedure, though implied from Article 6 of the said code of procedure. According to this principle, all the evidence and results of the investigations must be communicated to and freely discussed with the accused in the criminal proceedings. At the police custody stage, suspects are more likely to be deprived of their rights and freedoms due to police intervention. The institutionalization of this stage in the Iranian, French, and U.S. legal systems, the manifestations of the Contradiction Principle, including the defendant's right for awareness of accusation and defense rights, the right to have a translator, the right to silence, the right to counsel, the right to health and the right to be heard have been considered and examined from the perspective of both Roman-Germanic and Common Law systems. There are important ambiguities and challenges for the fulfillment of the Contradiction Principle in the Iranian criminal proceeding system, which can be resolved through the use of the experiences of French and American legal systems. Although the amendments of the 1392 law led to a move towards the relative observance of the Contradiction Principle and the acceptance of its manifestations, the Iranian criminal proceeding system is still distant from the more favorable in this regard.Introduction
The Code of Criminal Procedure has established strategic principles that guarantee justice. Further, concerning the natural value of these principles, the legislator is prohibited from ratifying rules contradicting these principles. One of the principles of Criminal Procedure that is crucially important in ensuring justice and warranting equality of the parties is the contradiction principle. This principle was enshrined in Articles 5 and 6 the Code of criminal Procedure.
The discovery of a crime and the custody by judicial surveillance are crucial steps in the criminal process. Under surveillance is an important stage since the suspect who is under the protection of the principle of acquittal and placed in police custody contrary to the principle of freedom, is subject to infringement of their legal rights and violation of the strategic principles of the Code of Criminal Procedure, particularly the contradiction principle.
An investigation into the Iranian Criminal Procedure, which is influenced by the mixed procedure system and possesses the characteristics of an inquisitorial system during the preliminary research phase, suggests gradual legislative developments toward the adversarial system and the transformation of the preliminary research phase into contradiction priciple. The criminal procedures of France and the United States can serve as appropriate examples for comparison.Methodology
This research is a descriptive-analytical study. As a non-experimental study, it builds on reasoning and analyzing the rules and judicial proceedings in the criminal procedure system of the countries under study.Results and Discussion
The contradiction principle is one of the crucial components of a fair trial. The contradiction principle is authorization granted to the parties to inform all documents and reasons for the lawsuit that might affect the final decision of the judicial authority and enable them to challenge them freely. The French Code of Criminal Procedure recognizes the contradiction principle in Preliminary Article. The United States criminal procedure has emphasized the practice of contradiction principle and identified the manifestations of this principle in the proceedings of the criminal procedures.
Custody is a stage in which the police detain the suspect. It is an authorization granted to the officers to keep a suspect in police custody for a specific period under special conditions. In France, custody is accepted under special conditions. The term custody is not used in the United States; rather, it is referred to as police arrest. In case a police officer has justifiable reasons to arrest a suspect, they can act without a judicial warrant.
In order to observe the rights of the suspect in the custody stage, the contradiction principle proposes instances such as the right to be informed of the subject of the charges and the right to defend, the right to have a translator, the right to attorney counsel, the right to silence, and the right to be heard by the judicial authority.
The suspect’s right to be informed comprises two parts: to be informed of the rights to defend and to be informed of the subject and evidence related to the charges. The officers shall inform the suspects of their rights to defend. In addition, they shall inform the suspect of the subject and evidence concerning the charges in a written notice. In French Law, the right to be informed comprises the nature of the crime, location, length of custody, and possible extensions, which are not subject to any exception. In the United States, when an suspect is arrested, the police should read the Miranda Rights to the suspect.
The right to counsel of an attorney is more crucial in the custody than in any other stage. The presence of an attorney can provide the minimum guarantee to practice the adversarial principle since the other party is the prosecutor enjoying every facility. The active role of the attorney and the necessity of having access to the lawsuit should be guaranteed.
One of the manifestations of the contradiction principle is the suspect’s right to silence regarding the questions asked by the officers. In case of assuming that the suspect is not guilty, they shall not be required to provide any reasons to prove it. It is the individual claiming that a crime has been committed that should prove their claims via legal methods, and the suspect can have the right to silence.Conclusion
The custody in Iran and France, or arrest in United States, is crucially important as one of the significant stages of the criminal procedure. Establishing supervisory institutions and transparent rules hinder the violation of the rights of the suspects at this stage. In France that differentiates the custody stage regarding the length, conditions, and effects on ordinary and violent and security crimes and terrorism has more desirable conditions. In addition, having predicted a differential criminal procedure, it has suggested various regulations. On account of the lack of a differentiated criminal procedure during the custody, it is necessary to make some modifications to Iranian law.
Given the Miranda warnings, it appears that the right to be informed of the subject of the charges and the right to defend as the introduction of the contradiction principle is more adequately recognized in the United States. The influence of the provisions of the European Convention on Human Rights enables the legal system of France to practice the contradiction principle.
The right to counsel of an attorney in custody is recognized in the criminal procedure system of Iran, France, and the United States. With regard to the deferential approach, in France, the meeting with an attorney can be delayed in cases of violent and security crimes and terrorism. In Iranian law, the restriction without reasoning of Note Article 48 affects the right to choose an attorney and violates the contradiction principle.
The right to silence in custody has not been predicted in Iranian law explicitly and can be extended to this stage by virtue of Article 61 of the Code of Criminal Procedure. The law is silent regarding the necessity of informing the right to silence. In light of the strategic principles and Article 6 of the Law, it may be deemed necessary to inform this right. The right to silence and the necessity of informing the suspect of this right by the police in custody is guaranteed emphatically in France and the United States.Keywords: Contradiction Principle, Arrest, Right to awareness, Right to counsel, Right to be heard, Right to silence
Investigation of subculture of violence among juvenile and young wrestler based on the concept of cultural replacement(case study of Mashhad)Pages 249-277
Current research has been carried out with the aim of investigating the status of the subculture of violence among teenage and young wrestlers in Mashhad. This research is of descriptive and analytical type and data collection is by both library and field methods. The sample size of the study was determined 170 by Cochran's test. To measure the status of the subculture of violence among the statistical population, 170 athletes from 13 sports clubs in different areas of Mashhad have been randomly surveyed. According to the findings of the research, more than 40% of the samples have been had high violence. About the effect of the independent variables on the violence of the samples should be say: sports club environment and group of peers had a significant relationship with the violence of the samples, while there was no significant relationship between living environment of the samples and their violence.Introduction
Nowadays in the world, sport is considered as a very important thing that has been mentioned with different titles in the world and has occupied many groups. Today, the importance and attention to the issue of sports, especially professional sports, is an integral part of the goals and thoughts of governments, politicians and different societies, especially advanced and large governments and societies. Indeed, where did this importance, interest and feeling of need for sports among people and governments come from? In response, it should be stated as follows: Sports today brings many benefits and achievements in various economic and political fields to different countries, and it can be called as a broad industry. However, one cannot be indifferent to other goals, results, achievements and functions of sports. Some experts have listed various positive functions in various fields such as health, cultural, wellness, social, psychological, therapeutic, political, economic, ethical, skill, etc. for sports. Obviously, if the stated functions in reality also have positive and similar results, sports can provide great and valuable services to human society. Of course, it should be said that the findings of all researchers who have researched in this field have not always been the same. A group of experts believe that sports make people learn positive values and this phenomenon has a positive effect on the process of socialization and normalization of people, while another group believes that sports can transmit undesirable values and its effect on the socialization of people is negative. The difference in the results is due to the fact that the psychological and social effects of different sports on people, depending on things such as the type of sport, the effect of the sport on the physical condition, the prevailing atmosphere in the sports environment, etc., are different from other sports. The main goal of the current research is to investigate the subculture of violence among teenage and young wrestlers in Mashhad city, as a special and separate sport. Wrestling is a very popular sport in Iran, which is Physical and engaging, and participating in it leads to an increase in the physical strength of people and for this reason, it can attract the attention of a wide range of teenagers and young people with tendency to violence. After examining the violence situation of the samples, we intend to investigate the relationship between the variables of the: living environment, the environment of the sport clubs and the group of peers of the samples with their subculture of violence in the framework of the research findings, And explain the concept of "cultural displacement" which refers to the change in the cultural condition of people as a result of the change in their social and cultural situations.Methodology
In this descriptive analytical research, data collection has been done by library and field methods. about the sections of literature review and research background, reference has been made to library resources including domestic and foreign books, articles and theses. Also, to collect quantitative data that can be analyzed, two methods of data collection by observation and questionnaire have been used.Results and discussion
According to the findings of the research, more than 40% of the samples had high violence, this article shows that a wide range of teenage and young wrestlers in Mashhad are violent. To answer the question, where does this level of violence among young wrestlers of Mashhad come from? It can be answered like this: wrestling clubs are attended by large number of teenage and young people with subculture of violence, According to the findings of this research 47.6% of the samples belong to areas with negative cultural structures, and the researcher's long time observations also confirm this issue that there are a large number of teenagers and young people with the subculture of violence in the wrestling clubs. Basically, having traits such as tenacity, courage, high physical strength and the ability to engage in physical conflict are among the basic values among teenagers and young people of the lower class, And wrestling, as a physical sport which increases physical strength, can attract many violence teenagers and young people with the motivation of increasing physical strength and improving physical skills. These teenagers and young people socialize with other people after being in the environment of sports clubs and during these socializations, they convey inappropriate value and normative patterns to others. These people can also become a role model for others by achieving success and progress in sports, models that others sometimes try to imitate them in every way. Finally, through these communications, trainings and imitations, we can see the occurrence of violence in other cases and increasing of violence among this category of athletes. About the effect of independent variables on violence, it should be said: According to statistical analysis, it was proved that there is a significant relationship and correlation between the variable of the club environment and the violence of the samples, Based on this, it can be said that each club has an independent environment and there is a high correlation between the violence of the samples and the environment of the club where they are located in, This point clearly shows that the placement of young athletes in these sport environments can result in their being influenced by the environment. Also, according to the findings, no significant relationship was observed between the variable of the living environment of the samples and their violence, while according to the results obtained in the research, there was a strong, significant and direct relationship between the variable of the group of peers and the level of violence of the samples. According to what has been said, we can conclude: The presence of teenagers and young people in environments with a violent atmosphere, also their communication with violent people, can lead to their strong influence from the environment and increase their violence And if this influence is not controlled by social control factors, over time it can lead to a complete change in the cultural status of people. People are exposed to different situations and cultural environments throughout their lives, situations that have their own structures and convey their own norms and social values to different people. In general, the different cultural situations that people are exposed to them during their lives can be divided into two general categories: "permanent cultural situations" and " permanent cultural situations". Permanent situations are those situations and environments which a person spends most of his time in that and constantly relates with those situations, such as: family and residential environment. On the other hand, temporary situations are those situations and environments which a person spends less time in those situations compared to permanent situations and usually relates with those situations for a short period of time, such as: school, University and sport clubs. The mental values and norms of people are formed under the influence of both permanent and temporary cultural situations, and each of these situations exerts its own effects on people. But what is considered and investigated in this research is that the long term exposing of people in some cultural situations, results in a state that called “cultural situation displacement". Cultural situations displacement can sometimes lead to "cultural displacement” in people. The concept of cultural displacement refers to a situation that people lose their former culture over time as a result of changing their cultural positions and replace new social values instead of their former social values, which also causes people to change their behavior compared to the past.Conclusion
According to the findings, among all research samples 1.2% of them have very low violence, 19.4% have low violence, 38.8% have moderate violence, 34.1% have high violence and 6.5% have very high violence. About the effect of the independent variables of the research on the subculture of violence of the samples, it should be say: sports club environment and group of peers had a significant relationship with the violence of the samples, while there was no significant relationship between living environment of the samples and their violence.Keywords: Sport clubs, Cultural displacement, Subculture of violence, Violence, Wrestling
A common form of domestic violence is the sexual abuse in marriage which is not explicitly criminalized in law of Iran. This research seeks to answer the following question: "How do public prosecutor's offices and criminal courts respond to victims of sexual abuse in marriage?”. Research data were collected through conducting in-depth and semi-structured interviews with judges, lawyers, and victims, as well as analyzing criminal cases and non-participant observation. The research findings reveal that while it is common practice for public prosecutor's offices to avoid recognizing sexual abuse in marriage, there exists a minority of judges that attempt to protect victims by extending the existing laws to marital sexual abuse. Nonetheless, the majority of cases that do make it to the sentencing phase get dismissed without having reached a conviction. The main reason for this is the judges' traditional interpretation of the concept of Tamkin in Islamic jurisprudence.Introduction
One of the most prevalent forms of domestic violence against women is the sexual abuse in marriage. According to the statistics of World Health Organization (WHO), in industrialized countries, about 24% of married women have experienced at least once sexual violence by their husbands, and this rate rises to about 37% (approximately 1 in 3 women) in Middle Eastern countries like Iran. Empirical studies not only do not support the milder trauma to the victim in the case of marital rape in comparison to stranger rape, but also reveal that marital rape causes more severe and long-lasting trauma. Therefore, international documents have emphasized the need to protect women against domestic sexual violence.
As described by 2010 United Nations handbook for legislation on violence against women, domestic sexual violence not only does violate woman's physical integrity and her sexual autonomy but also is a crime against the unity of the family and the health of the community. United Nations encourage the member states to criminalize such behavior and recognize it as a punishable act. Although in recent decades, some countries reforming their criminal laws have criminalized the marital rape, sexual abuse in marriage is not explicitly criminalized in criminal law of Iran. In addition to the lack of criminal intervention which still keeps husbands from prosecution and punishment, there is no protection and treatment intervention for victim women suffering from this kind of violence.
When the criminal law of Iran is silent and vague, the question arises as to how do public prosecutor's offices and criminal courts respond to sexual abuse in marriage? In other words, this research aims to answer the question that despite the legislator's silence, whether it is possible to criminally protect married women of marital sexual abuse or not.Methodology
In this research, a qualitative approach and a descriptive-Analytical method were used to evaluate criminal justice system response to sexual abuse in marriage. To answer the research question, in addition to library resources, three other methods were used for data collection: 1) In-depth and semi-structured interviews with 15 criminal court judges and 15 lawyers (by using snowball sampling), and 35 victims of marital sexual abuse (by using purposive sampling), 2) analysis of the content of 23 criminal cases related to the research subject, and 3) non-participant observation.Results and discussion
Our findings suggest that “getting lucky” is a key driver in a safe and helpful criminal justice response to sexual abuse in marriage. As articulated by many interviewees, coming across the “right” officer, investigator or judge could make the difference. Our findings also indicate that prosecutors and investigators are divided into two groups in dealing with victims of marital sexual abuse. First, those who do not recognize sexual abuse in marriage and make decision to give the husband an absolution from accusation with the excuse of lack of law. Second, those who aim to protect women victims and therefore extend existing laws to the sexual abuse in marriage. These prosecutors and investigators attempt to file cases of marital sexual abuse under general offences such as assault and battery, threat, insult, slander, etc.
The interviews and observations showed that the aforementioned first approach is more common in public prosecutor's offices, and the prosecutors and investigators of the second approach are in the minority. The concept of the “Tamkin” (wife’s obedience to her husband in Matrimonial duties) in Islamic law plays an important role in this judicial avoidance. Influenced by this concept, judges often view the intercourse as the husband’s right and the wife’s duty. As a result of such misunderstanding, the sexual victimization of the wives by their husbands is ignored.
Another research finding was that criminal court judges, just like prosecutors and investigators, frequently avoid recognizing sexual abuse in marriage and criminal protect for women victims of it. In criminal court, judges merely convict the husband in the case where sexual abuse against his wife is accompanied by physical violence. In the case of sexual abuse accompanied by emotional and verbal abuse (not bodily violence), they simply acquit the husband because of the difficulty of proving domestic violence. Even when evidence seems sufficient, judges (at their own judicial discretion) prefer to sentence the husband to “Diya” instead of imprisonment or whipping. In addition, the judges (under the pretext of preserving the family) often prefer to put pressure on the victim to forgive her husband, rather than to issue a conviction.Conclusion
Research findings reveal that the criminal justice agencies do not tend to convict or sentence the husbands for committing sexual abuse in marriage and on the contrary, they attempt to minimize victims' experience. Therefore, considering the inadequacy of existing substantial and procedural criminal laws, the first and most important suggestion is the criminalization of marital sexual abuse in legal discourse, along with the determine and impose penalties that are appropriate both to deterring the husbands from committing sexual abuse and to meet the needs of the wives. Overall, it seems that the results of this research may help legislators and policymakers of criminal justice system to solve or at least to mitigate the consequences of this ever-increasing phenomenon.Keywords: Criminal Court, Criminal Justice Agencies, Public Prosecutor's Office, Sexual abuse in Marriage, Victim
The roots of jurisprudential and human rights challenges of Article 91 of Islamic Penal Code 1392 regarding of death penalty for juvenilesPages 311-335
The provision of Article 91 of the Islamic Penal Code 1392 has ambiguities and difficulties both from a jurisprudential and human rights perspective. The possibility of interpreting the law to the effect that, in principle, adults under the age of 18 are sentenced to death, except in exceptional cases; the authority of the judge to prove that an adult under 18 years of age is not subject to exceptional cases; disregarding the personality of adults under 18, and the vagueness of the alternative punishment of the death penalty are some of these difficulties. The present article attempts to identified these ambiguities by employing a descriptive-analytical method and by using legal documents, Islamic jurisprudential and judicial opinions. Finally, some suggestions to modify the law was propsed.Introduction
By ratifying human rights documents (such as Article 6 of the International Covenant on Civil and Political Rights & Article 37 of the Convention on the Rights of the Child), Iran has committed not to execute persons under 18. However, in the previous Islamic Penal Code (1370), once children reached the age of legal maturity (9 and 15 full lunar years), they are supposed responsibil even for crimes that were punishable by death. Therefore, death penalty for crimes before the age of 18 was incompatibile with the mentioned obligations, until the Iran enacted Article 91 of the Islamic Penal Code of 1392 in this regard.
From other hand, Iran also obliged to respect Islamic standards (the fourth principle of the Constitution of the Islamic Republic of Iran); Therefore, the Iran has two obligations regarding the death penalty for juveniles, the first one is a human rights obligation and the second is a religious obligation; Therefore, the compliance of Article 91 of the Islamic Penal Code with these two forms of commitment needs to be investigated. In this regards, the main questions are as follows: "1. What are the jurisprudential and human rights challenges of Article 91 of the Islamic Penal Code 1392 in relation to the death penalty for adults under 18 years of age? 2. What are the roots of these challenges? And 3. What is the solution for these difficulties?". In order to answer the three mentioned questions, three levels of analysis were adopted. First, each challenge is described and then criticized in terms of legal foundations, jurisprudential (fiqhi) evidence and relevant human rights documents. Then, the roots of these challenges and the presuppositions that exist at the background were analyzed. After that some suggestions to modify the law were proposed. The present article differes from previous researches in that it involves a comprehensive view of the chanllenges raised by article 91 of Islamic Penal Code and suggests a revision of the law.Methodology
In this research, the ambiguities and difficulties of Article 91 of Islamic Penal Code 1392 in relation to the death penalty for juveniles, have been identified by using library sources and in a descriptive-analytical method.Results and discussion
The difficulties of the article are extra-legal and extra-islamic jurisproudnece rather than jurisprudential or legal. Its root lies in the lack of attention to philosophical issues about jurisprudence and different levels of law (especially legislation and islamic jurisprudence). Having a cross-disciplinary and extra-legal perspective and paying attention to philosophical issues about jurisprudence and law, it is concluded that solving the problems depends on taking these issues seriously:(1) In traditional and classical jurisprudence, the meaning of the “condition of reason” in criminal cases is not only its literal meaning (only the absence of insanity), but it also includes intellectual perfection. Therefore, failure to refer explicitly to the conditional nature of criminal liablity and its dependance on intellectual perfection can not be the reason for its absence in jurisprudance. (2) The requirement of rational perfection for criminal liability is logical in the sense that the absence of explicit reference to it can not be attributed to Shariat; So, (3) believing that criminal liability is dependant on both intellectual perfection and criminal liabilty is possible and defensible from the point of view of Shari'ah and jurisprudence, and it is also necessity. (4) Legal system, jurisprudence and Shariah in various legal fields (including law education, legal research, legislation, law enforcement and litigation) should move in this direction.Conclusion
The two concerns of compliance with Islamic standards and with human rights obligations have led to the approval of Article 91 of the Islamic Penal Code (2012). The following five interpretations are inconsistent with the relevant human rights documents and cannot be defended based on the correct inference from islamic jurisprudence:(1) The article allows commentators to interpret the law in this way: death penaltyof an adult under 18 is only an exceptional matter; (2) distingushing and proofinf of criminal maturity lacks criteria; (3) Given this fact that the perpetrator is not subject to the mentioned exception, the judge can even ignor the medical reports about the juvenile under 18 about rechhing full Intellectual growth ; (4) The personality of a under 18 person who is punishable by death penalty is not considered; In the event that the judge determines that the juvenile under 18 is not executed due to the lack of full wiseness and criminal growth, the alternative punishments are ambiguous.Keywords: juveniles, death penalty, perfection of reason, Jurisprudence, human rights challenge