Journal of
Criminal Law and Criminology
Number 20
Vol. 20 ● No. 10
Autumn-Winter 2023
The Shahr -e- Danesh Institute of Law
Research and Study
(SDIL)
Managing Editor: Vahid Eshtiagh
Editor-in-Chief: Mohammad Ashoori
CONTENTS
Penetration of Criminalism to The Criminal Realm and its Impact on Depenalization Policies
Golnaz Moradi Pasand – Dr. Tahmoores Bashiriyeh –Dr. Hosein Gholami
An Analysis of the Public Prosecutor’s Office and Criminal Courts Function Regarding Suspension of Criminal Prosecution and Adjournment of Judgment during Years 1397 and 1398
Dr. Ali Khaleghi – Siamak Asgharlu
The Requirements of the National Risk Assessment Document for Money Laundering and Terrorism Financing in the Light of the Risk-Based Approach
Dr. Seyyed Mansour Mirsaidi – Hossein Sobhani
Evaluation of Population Policies in Measuring the Principles of Criminalization; Emphasizing the Youthful Population and Protection of the Family Law
Dr. Mehrangiz Roustaie – Dr. Mohammad Bagher Moghaddasi
The Evaluation of Criminalization of Begging in the Light of the Filter Standard
Dr. Morteza Arefi
Criminological Analysis of the Causes of Juvenile Delinquency in Urmia City in The Period 1390-1394
Peiman Ghayuri niya – Dr. Seyed Ali Mirebrahimi – Dr. Mohammadali Qorbani
Comparison of the Components of the Public Hearing in the International Human Rights System and Iranian Criminal Proceeding System
Morteza Rasteh – Dr. Abdolali Tavajohi – Mozhgan Nemati
Parameters of a Successful and legitimate Covert Entrapment Operation in the Economic Crime of Money Laundering
Mohammad Pirani – Dr. Asghar Abbasi – Dr. Ali Ghorbani
Identifying Defendants’ Spoken and Written Authorship in Courts based on Forensic Linguistics
Soraya Sobhani – Dr. Bahman Gorjian – Dr. Khalil Mahmoudi – Dr. Elkhas Veysi
A Native View of The Theory of Social Control of Crime According to Iranian Islamic Principles
Samira Taj Khorasani – Dr. Gholam Hossein Masoud- Dr. Mohsen Shekarchizadeh
The Approach of Zemiology to State Crime and the Function of Its Responses
Mohammad Nazemipour – Dr. Mehrdad Rayejian Asli – Dr. Firoz Mahmoudi Janaki – Dr. Mohammad Reza Elahi Manesh
Criticisms of restorative justice
Hakime Farnam
ABSTRACTS
Penetration of Criminalism to The Criminal Realm and its Impact on Depenalization Policies
Golnaz Moradi Pasand
Ph.D. Student in Criminal Law and Criminology, Faculty of Law, Ardabil Branch, Islamic Azad University, Ardabil, Iran,
Dr. Tahmoores Bashiriyeh
Assistant Professor, Department of Criminal Law and Criminology, Faculty of Law and political Sciences, Allameh Tabataba’i University,Tehran, Iran, Corresponding Author
Dr. Hosein Gholami
Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran
Abstract:
Throughout its life, criminal law has used different methods to respond to crimes. Although the criminal justice system is trying to find the most appropriate way to respond to crimes, the most common way is to resort to criminal mechanisms. When this method leads to determining disproportionate punishments, intensifying punishments, and being strict in their implementation, it is said that criminalism has penetrated the realm of criminal justice. Criminalism, as one of the problems of the criminal system, with its influence on various levels of society, makes the implementation of any welfarist policies based on criminal withdrawal a fundamental challenge and creates the basis for extremism, security orientation and turning away from criminal policies. This phenomenon, spreading to the executive level, has led to the formation of a police atmosphere in the society, and the police, as the first and last institution of social control, inappropriately use force and power to limit the freedoms of citizens and create a security environment, as a result of Concepts such as order and respect for citizens’ rights are replaced by securityism and extreme policing. Criminalism can be seen at different cultural, political, judicial and legislative levels.In this article, we have tried to define each of these types of solutions to solve this problem so it is necessary to provide solutions to get rid of this problem by improving the level of education and using the teachings of criminology, Make logical rules, Avoid populism , as well as setting the model of criminal minimalism.
Keywords: Criminalism, Depenalization, Populism, Security, Extremism.
An Analysis of the Public Prosecutor’s Office and Criminal Courts Function Regarding Suspension of Criminal Prosecution and Adjournment of Judgment during Years 1397 and 1398
Dr. Ali Khaleghi
Associate Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Science, University of Tehran, Tehran, Iran.
Siamak Asgharlu
Ph.D Student in Criminal Law and Criminology, Faculty of Law and Political Science, University of Tehran, Tehran, Iran, Corresponding Author
Abstract:
The analysis of the public prosecutor’s office and criminal courts function regarding suspension of criminal prosecution and adjournment of judgment is a process that aims to evaluate and determine the use of these measures in 1397 and 1398 in the Tehran jurisdiction. This study has examined the tendencies and practices of these two institutions in Tehran to provide the necessary feedback according to the strengths and weaknesses. The present article, while studying the theoretical and practical aspects of these two institutions and the decisions issued by the judicial authorities of the courts and tribunals (based on random sampling) and presenting statistics from the general and revolutionary courts and the criminal courts of Tehran regarding the use of these institutions, deals with the approach of judges of Tehran in the use of these two institutions during the interview and by preparing a questionnaire. The statistical population of the interview consists of 54 judges, all of whom were selected as the research sample. The research tool is a questionnaire whose validity has been approved by 50 judges and its results are shown in numbered tables. The results of this evaluation showed that the performance of courts and tribunals in the use of these two institutions in 1398 compared to 1397 is not at the desired level. It seems that the approach of the criminal courts of Tehran to these institutions is incoherent and unstable and sometimes based on a personal approach that enlightens and educates judges and creates conditions for them and legislative development of the territory of these institutions in the amount of use. Considering that the legislature has a decisive role in developing the territory of the mentioned institutions and judges in their actions, it is suggested that such institutions be approved first using the opinions of lawyers and judges’ experiences, and while obliging these institutions, a practical procedure Improve by increasing training courses for judges.
Keywords: Analysis of Function, Public Prosecutor’s Office, Criminal Court, Suspension of Criminal Prosecution, Adjournment of judgment.
The Requirements of the National Risk Assessment Document for Money Laundering and Terrorism Financing in the Light of the Risk-Based Approach
Dr. Seyyed Mansour Mirsaidi
Assistant Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran.
Hossein Sobhani
Ph.D. Stundent in Criminal Law and Criminology, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran, Corresponding Author
Abstract:
The nature of organized crime is such that it is not possible to deal with it, except through an organized response commensurate with the nature of the crime. The need for a methodical response to these crimes has led the Financial Action Task Force, as the most specialized organization to deal with such crimes, to propose a basic risk approach to countries. Explain that in any financial field, taking into account the existing risk, in the event of a crime, the plaintiff should take action; For example, in cases of high risk of committing a crime, in a financial area, appropriate action is taken to reduce the risk, increase the facilities and resources to deal with the crime. In the legal systems of countries to adopt a basic risk approach to crime, a strategic plan called the “National Risk Assessment Document” has been developed. In this regard, Article 3 of the “Executive Regulations of the Additional Article 14 of the Anti-Money Laundering Law approved in 1398” has also provided for the principle of its compilation; However, the mentioned document has not been compiled so far and theoretically the requirements for its compilation do not seem to be provided. Accordingly, in order to prepare part of the theoretical foundations of the document, in this study, after analyzing the basic risk approach, according to the documents of the Financial Action Task Force and with regard to the national risk assessment documents of several leading countries, principles and The requirements for compiling the National Risk Assessment Document of Iran should be compiled and explained in order to deal with organized and transnational crimes within the framework of the National Risk Assessment Document of Iran. It should be noted that this research has been done by descriptive-analytical method and in collecting resources, the library method has been used.
Keywords: Money Laundering, Terrorist Financing, Basic Risk Approach, National Risk Assessment Document, Financial Action Task Force Standards.
Evaluation of Population Policies in Measuring the Principles of Criminalization; Emphasizing the Youthful Population and Protection of the Family Law
Dr. Mehrangiz Roustaie
Assistant Professor, Department of Law, Faculty of Literature and Humanities, Malayer University, Malayer, Iran.
Dr. Mohammad Bagher Moghaddasi
Assistant Professor, Department of Law, Faculty of Humanities, University of Bojnord, Bojnord, Iran.
Abstract:
The recent intervention with individual liberties under The Youthful Population and Protection of the Family Law can be assessed from the perspective of the supra-legislative principles governing criminal power with two legitimacy and justification. Leading research has been done by descriptive-analytical method in order to evaluate coercive interventions in the field of population, with the aim of examining its compliance with the moral limits of the criminal law. Examining the issue from the perspective of the most important principles of criminalization, namely the threefold “prohibition of harm to others”, “protection of individual good” and “guarantee of morality with the means of punishment”, it is concluded that the nature of these interventions differs from what has been done before. It is important in the sense that we are facing more challenging legislation that highlights the need to justify these interventions: in the new course of interventions, infertility is the subject of the intervention: “Prohibition of sterilization”, “Prohibition of closing the fallopian tubes”, ” “Making access to contraceptives difficult” and “restricting screening” as new population growth measures need to be justified. In the first filter, the principle of harm, the interventions made completely deviate from this principle. Recourse to criminal ethics will not be able to justify these interventions in an inherently neutral ethical issue, and finally, in passing through the filter of criminal patriarchy, the interventions are faced with an obvious internal conflict in which the individual good as a justifier intervenes.
Keywords: The Youthful Population and Protection of the Family Law, Sterilization, Contraception, Principles of Criminalization, Population Control.
The Evaluation of Criminalization of Begging in the Light of the Filter Standard
Dr. Morteza Arefi
Assistant Professor, Department of Law, Faculty of Humanities, Bu Ali Sina University, Hamedan, iran.
Abstract:
Criminalization is a rational process based on the principles, norms and economic, social, cultural and political structure that governs any society, the result of which is the prohibition of committing or omission a behavior with a criminal response. Completing this process and criminalizing a behavior involves going through various stages. As one of the philosophers of criminal law, Jonathan Schonsheck cites the three filters of principles, presumptions, and practical consequences of criminality as obstacles to criminal lawmakers. Accordingly, the present study is in the position of evaluating the criminalization of begging in the light of “Schonsheck” view; Behavior that is considered a crime under Article 712 of the 1996 Islamic Penal Code.
The findings of this study indicate that the legislator’s decision to criminalize begging has no strong theoretical underpinnings and that none of the principles of criminalization (eg, the principle of harm, paternalism, moralism and perfectionism) can justify the prohibition of such behavior. In addition, its sanction violates governments’ human rights obligations to ensure minimum welfare. Begging is an example of an imported crime that has entered the arsenal of criminal law by simply imitating the laws of some countries and without considering the realities of Iranian society. In this regard, it is suggested that 1) this behavior should be considered a crime only if it is accompanied by the exploitation of children and adolescents, and 2) the legislator while decriminalizing begging, should include this behavior in the realm of social policy and not criminal.
Keywords: Criminalization, Begging, Jonathan Schonsheck, Liberty, Decriminalization.
Criminological Analysis of the Causes of Juvenile Delinquency in Urmia City in The Period 1390-1394
Peiman Ghayuri niya
Ph.D. Student in Criminal Law and Criminology, Faculty of Humanities, Lahijan Branch, Islamic Azad University, lahijan, Iran
Dr. Seyed Ali Mirebrahimi
Assistant Professor, Department of Jurisprudence and Islamic Law, Faculty of Humanities, Lahijan Branch, Islamic Azad University, lahijan, Iran, Corresponding Author.
Dr. Mohammadali Qorbani
Assistant professor, Department of Jurisprudence and Islamic Law, Faculty of Humanities, Lahijan Branch, Islamic Azad University, lahijan, Iran
Abstract:
One of the key individual and social actions is the necessary condition for the growth and development of human society and achieving an ideal society.The purpose of this study was to and achieve scientific and practical solutions to prevent delinquency or at least reduce it.In this research, descriptive-survey method has been used. To achieve more objective results, the necessary information has been collected through questionnaires, interviews and library resources and has been analyzed using statistical methods. The field research was conducted by referring directly to the Central Prison and Correctional Center of Urmia city through interviews and questionnaires and by examining the personal and social records of offenders, the most important delinquency factors were identified and strategies for crime prevention were presented.The statistical population in this study includes criminals located in the correctional center of Urmia city who have been selected as a sample in this study. The total number of subjects studied in this study was fifty. These fifty people were selected from male and female offenders (sample size)The sampling method in this non-probability research is purposeful. In this project, the researcher has had the effective cooperation of the Prisons Organization and the security and educational measures of West Azerbaijan Province and the General Justice of West Azerbaijan Province and has had access to official internal statistics.The results showed that the most important delinquency factors in Urmia city during the research period are environmental factors such as family, school and friends.
Keywords: Delinquency, Children and Adolescents, Environmental Factors, Correctional Center, Prevention.
Comparison of the Components of the Public Hearing in the International Human Rights System and Iranian Criminal Proceeding System
Morteza Rasteh
M.A. in Criminal Law and Criminology, Faculty of Law and Political Science, Chalus Branch, Islamic Azad University, Chalus, Iran, Corresponding Author
Dr. Abdolali Tavajohi
Associate Professor, Department of Law, Faculty of Humanities, Shahed University, Tehran, Iran.
Mozhgan Nemati
Ph.D Student in Criminal Law and Criminology, Faculty of Law and Political Science, Tarbiat Modares University, Tehran, Iran.
Abstract:
public hearing Instead of having a one-dimensional nature, has a composite structure that can be divided into different elements, and even with the absence of one of these elements, its true meaning is overshadowed. In the international human rights system, often specific mechanisms are established through human rights monitoring institutions such as the European Court, the American Court and the Human Rights Committee to monitor and protect the right to public hearing and closely monitor its implementation in national courts, and through the handling of cases raised in these institutions, several components have been defined for the structure of public hearing. This article with the aim of examining these components, seeks to answer this question: To what extent do the concept, nature and elements of public hearing in Iranian criminal proceeding system comply with the standards accepted by the international human rights system? In this regard, the current research, with a descriptive-analytical approach and by using library resources, describes the position of the discussed subject in a comparative manner in these two systems. The comparison of this issue in the international human rights system and the Iranian criminal proceeding system shows that, Although the public hearing has been recognized as a fundamental principle of Iran’s constitution, its implementation in the country’s legislative and judicial systems requiring not only that the legislator stipulates some components of the public hearing which have been neglected so far, but also meet the executive and practical challenges of criminal court proceedings.
Keywords: Public Hearing, Public Opinion, Rights of the Accused, International Human Rights system, Fair Trial.
Parameters of a Successful and legitimate Covert Entrapment Operation in the Economic Crime of Money Laundering
Mohammad Pirani
Ph.D. Student in Criminal law and Criminology, Faculty of Law, Chalous Branch, Islamic Azad University, Chalous, Iran,
Dr. Asghar Abbasi
Assistant Professor, Department of Criminal Law and Criminology, Faculty of Law, Chalous Branch, Islamic Azad University, Chalous, Iran, Corresponding Author
Dr. Ali Ghorbani
Assistant professor, Department of Criminal Law and Criminology, Faculty of Law, Chalous Branch, Islamic Azad University, chalous, Iran.
Abstract:
Money laundering is considered as a by-product of criminal activities having the potential of destroying the integrity of financial institutions in a country. Thus, it is necessary to discover this crime and fight it. But the special characteristics of this crime, including its non-visibility, rhizomization of the space and ways of committing, professional perpetrators, its mobility and dynamicity, dispersion of danger, being organized, and seeming to be without victims. Therefore, we have to use secret operations to discover this crime. Entrapment can be mentioned among these operations, having three features in the crime of money laundering: 1) Gaining evidence against money launderers and excluding them from the cycle of criminal activity; 2) Arresting people who are likely to have fraudulent intentions, these people will be prevented from committing crimes because of the fearing that they may be the prey of these operations; 3) Through these operations, criminal organizations have moved large amounts of cash to use the services of money laundering companies, making it easier for the officers to identify them. But an entrapment operation can be successful when, in addition to entrapping real criminals, it also warns potential criminals. Taking into account the economy and ethics of these operations and their management and considering people’s reaction to them are among other characteristics of this kind of operations.
Keywords: Covert operations, Police, Entrapment, Economic Crime, Money Laundering.
Identifying Defendants’ Spoken and Written Authorship in Courts based on Forensic Linguistics
Soraya Sobhani
Ph.D. Student in General Linguistics, Faculty of Linguistics, Abadan Branch, Islamic Azad University, Abadan, Iran,
Dr. Bahman Gorjian
Associate Professor, Department of Applied Linguistics, Abadan Branch, Islamic Azad University, Abadan, Iran, Corresponding Author
Dr. Khalil Mahmoudi
Assistant Professor, Department of Applied Linguistics, Faculty of Linguistics, Abadan Branch, Islamic Azad University, Abadan, Iran.
Dr. Elkhas Veysi
Associate Professor, Department of Applied Linguistics, Faculty of Linguistics, Payam-e-Noor University, Tehran, Iran.
Abstract:
Forensic linguistics refers to the scientific study of the application of language for court purposes. This interdisciplinary field of study can be regarded as a sub division of applied linguistics, which has been formed, based on the individuals’ needs to communicate legal interactions. It needs theoretical linguistics to determine the study of intended meaning of the language in the court. The courts may need to identify the written and spoken identity of the accused persons through authentic studies. Thus, this research investigated the criminals’ spoken and written authorship in the court through Menamin’s (2002) approach. This study is conducted through descriptive method and analysis of court documents to arrive at the identification of the criminal spoken and written authorship in the courts. Analyzing the two cases of written and spoken documents in the courts revealed that spoken and written discourse markers might display the identity of the criminal person. McMenamin’s model was used to analyze the criminal persons’ linguistics and stylistics variables that lead to their identification. These markers may be procedural steps like phonological, morphological, semantic and syntactic clues that are unique among the communities and even people in the context of the courts. Verbal and non-verbal communications could be analyzed based on the proposed model discussed in this study. The court clues could be matched with the McMenamin’s principles in discovering the criminal spoken and written authorship. The implications of this study may help the interrogators, judges and attorneys to do the job fairly.
Keywords: Forensic Linguistics, Written And Spoken Authorship, Mcmenamin, Defendant, Court.
A Native View of The Theory of Social Control of Crime According to Iranian Islamic Principles
Samira Taj Khorasani
Ph.D. Student in Criminal Law and Criminology, Faculty of Law, Theology and Islamic Studies, Najaf Abad Branch, Islamic Azad University, Najaf Abad, Iran,
Dr. Gholam Hossein Masoud
Assistant Professor, Department of Law, Faculty of Law, Theology and Islamic Studies, Najaf Abad Branch, Islamic Azad University, Najaf Abad, Iran, Corresponding Author
Dr. Mohsen Shekarchizadeh
Assistant Professor, Department of Law, Faculty of Law, Theology and Islamic Studies, Najaf Abad Branch, Islamic Azad University, Najaf Abad, Iran,
Abstract:
Desirable native humanities for Iran are sciences and methods that are the product of scientific activities based on the culture, beliefs and needs of Iranian society and are aimed at solving the problems and problems of Iranian society. Therefore, the issues should be designed locally or the ideas should be localized in a proper way and appropriate to the culture and religion of the country, so that the desired result can be obtained from them. The meaning of localizing the theory of social control of crime (Hirschi) is to benefit from the policies and measures derived from these theories in the field of crime prevention and control. The purpose of localization of this theory is to localize the theory, because the theory does not belong to one’s own country and it was formed based on the problem of other countries and proceeded based on the belief and cultural foundations of that country and provided a solution, in this case it should be Let’s give it a native appearance to be localized, but its essence will not change. As a result, in the localization of this theory, we should take the general frameworks and directions from Islam and place the spirit and essence of Islamic teachings as the core of humanities and social sciences.
Keywords: localization, social control of crime, Islamic-Iranian foundations, Humanities, prevention.
The Approach of Zemiology to State Crime and the Function of Its Responses
Mohammad Nazemipour
Ph.D. Student in Criminal Law and Criminology, Faculty of Humanities, North Tehran Branch, Islamic Azad University, Tehran, Iran,
Dr. Mehrdad Rayejian Asli
Assistant Professor, Faculty Member, Department of Law, Institution of Research & Development in Humanties (SAMT), Tehran, Iran.
Adjunct Professor, Department of Law, Faculty of Humanities, North Tehran Branch, Islamic Azad University, Tehran,Iran, Corresponding Author
Dr. Firoz Mahmoudi Janaki
Associate Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Sciences, Tehran University, Tehran, Iran.
Adjunct Professor, Department of Law, Faculty of Humanities, North Tehran Branch, Islamic Azad University, Tehran, Iran
Dr. Mohammad Reza Elahi Manesh
Assistant Professor, Department of Law, Faculty of Humanities, Islamic Azad University, North Tehran Branch, Tehran, Iran
Abstract:
The construct of crime in the criminal justice, in terms of its political ideology, basically seeks to preserve the power relations of the upper class, esp. the state, as well as its reproduction. Therefore, harmful and criminogenic acts of state are not mainly criminalized, and if criminalized, they are not recognized in the criminal justice system. These acts even have not been recognized in mainstream criminology. As a result, the victims of such extensive harms and injuries caused by the consequences of public and governmental programs and policies are not recognized. Accordingly, the main goal of the present article is to explore and redefine the harmful acts of state based on a broad and process-oriented approach (i.e. zemiology), beyond of the traditional approach (i.e. the legal definition of crime).This alternative approach can expand recognizing the scope of harmful acts of state, as well as recognizing the widespread victimization of these acts. Based on a descriptive-analytical method, this article seeks to explain the failure of criminology and criminal justice to recognize and redefine the injurious acts of state and concludes that an exit door for this unpleasant situation is to disclose the hidden image of state crime emphasizing upon the zemiological approach in order to inclusion of all violations of international norms called as harm and soft laws. Such an approach allows the adoption of multiple responsive measures including proactive, reactive and control responses in facing with state crime.
Keywords: Zemiology, Responses, State Crime, Criminal Justice System, Prescriptive Approaches.
Criticisms of restorative justice
Hakime Farnam
Instructor, Department of Law, Faculty of Law and Social Sciences, Payam Noor University, Tehran, Iran.
Abstract:
Restorative justice is a term used in recent decades in criminal policy, which has received unprecedented acclaim as in any other emerging theory and phenomenon. They have since emerged, and efforts are still underway to continue and develop these effects within the criminal justice system. However, it seems to us that the time has come for the sheer submission of effective and effective expertise on imported and emerging theories and their practical implications, although the criminal justice system of our country has already experienced such Adoption of issues such as conditional release, suspended sentence, imprisonment alternatives and the like has benefited, and should not be seen as a reason for the successful adoption of any import theory and its operation. The authors criticize the restorative justice approach and after examining the criticisms of restorative justice in the two areas of nature and results of programs, the inadequacy of its models and programs and the need for a comprehensive review of restorative justice challenges And they turned to the opportunity and made suggestions. The method of information orientation in this article is a library and the materials are analyzed in a descriptive manner.
Keywords: Restorative Justice, Criticism, Philosophy, Bill of Restorative Justice, Challenge.
