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Home / Published archives / Journal of Criminal Law and Criminology – Number 12

Journal of Criminal Law and Criminology – Number 12

Journal of

Criminal Law and Criminology

 

Number 12

 

Vol. VI ● No. 2

Autumn 2018 – Winter 2019

Managing Editor: Vahid Eshtiagh

 

 

CONTENTS

 

Articles

Some of the Characteristics of the due Process Model in the Criminal Procedure Act 1392

Baharak Shahed & Dr. Nasrin Mehra

Rationality Foundations of Situational Crime Prevention

Dr. Mehdi Moghimi

Prevention of Transmitting Incomes of Organized Crimes in Iran’s Criminal Law and International Documents

Yaser Gholamnejad & Dr. Mohammad Ali Mahdavi Sabet

The New Criminal Procedure Law Approach to Witness and Informed Rights in the Preliminary Research Phase and its Compliance with International and Regional Documents

Abbas Akhtari & Dr. Hassan-Ali Moazen Zadegan

Legal Analysis of the Illegal Alteration of Land Use by Fencing in Agricultural Lands and Gardens with an Emphasis on Judicial Precedent

Dr. Hamid Bahremand & Naser Ghanbarian

Penological Analysis of Customary Penal Code

Dr. Mahdi Sabooripour & Iraj Khalilzadeh

Feasibility Study of Utilization of Modern Criminal Institutions in Islamic Prescribed Punishments (Hodud)

Hossein Khodayar & Dr. Rahim Nobahar

Articles

Some of the Characteristics of the due Process Model in the Criminal Procedure Act 1392 

Baharak Shahed

Ph.D. Student of Criminal Law and Criminology, Islamic Azad University,
Science and Research Branch, Tehran, Iran

&

Dr. Nasrin Mehra

Associate Professor of Shahid Beheshti University, Tehran, Iran

Abstract:

The Due process model, in terms of compatibility with the concept of Justice in Sharia, Principles of Criminal Procedure, the Constitution, the International Covenant on Civil and Political Rights 1996, human rights standards and common sense, should be of interest to the legislator and without it, the criminal justice system will be confronted with a crisis. The Criminal Procedure Act 1392 explicitly to the necessity of being fair trial has not mentioned, but the identification of some of the essential indicators of a fair trial has been necessary. Referable to the lack of modilization and structural barriers, legal and practical, and enforcement mechanisms, the creation of a fair trial does not have to be perfect. As noted scattered legislator to some criteria, without paying attention to specific measures, would not be comely to the transactions. Detailed recaps and predictions of future performance of the criminal justice may be predicted by model of criminal proceeding. The independence and neutrality of the judicial system, judicial equality and protect the rights of the accused in the criminal procedure law 1392, as the most important characteristics of a fair trial will be considered into.

Keywords: Fair Trial, Equality of Weapons, Rights of Accused, Disinterest of the Evaluator.

Rationality Foundations of Situational Crime Prevention 

Dr. Mehdi Moghimi

Assistant Professor at the Department of Criminology, Amin University of
Police Sciences, Tehran, Iran

Abstract:

Background and Objectives: Situational prevention is an approach which, by concentrating on “situation”, considers the environment as being more effective in crime commission from among “human” and “environment”. With this takeaway, “human” assumes a weaker role in situational prevention analyses; however, some perspectives of this kind of prevention, especially perspectives related with “decision-making systems of the potential offender in the face of the crime situation” can implicitly provide insights into his system of rationality, will, passions and instincts. This article is aimed to explore the basics of one of these insights, i.e., situational prevention rationality. This rationality involves certain “philosophical” and “positivist” principles.

Methodology: This research is applied in terms of goals and from a methodological point of view, it is based on documents. The research has been conducted by using library studies, internet sources, articles and Persian and English researches. Note taking was used to gather data also.

Findings and Results: By invoking to the Hume’s philosophy, situational prevention believes passions to direct the potential offender. The potential offender chooses his targets by directing passions by the shortest means possible in the direction of his benefits. Inspired by Bentham and Mill’s philosophical perspectives, i.e., attraction of pleasures and avoidance of pains, situational prevention theorists consider the choice of target on the part of the potential offender as a function of the principle of “utility”. From a positivist point of view, situational prevention believes the potential offender to be a function of reward-punishment pattern as it models behaviorist psychology.

Sociologically, the cost-benefit model has been introduced as a basis for the potential offender’s decision making. Accordingly, the situational rationality system is a nominal/ instrumental rationality which, considering all human’s behaviors as “purposeful”, directs rationality towards the “logic of calculus”. This kind of thinking reduces man to an evaluating/ calculating creature. In this system of rationality, values, spirituality and happiness are nonsensical, because goals are mostly determined by passions for gaining short-term material benefits via economic estimates (cost-benefit). This denotes reducing a truth-seeking man (goal-setting criteria) to an effective man (the rationale for determining means).

Keywords: Situational Prevention, Reasoning, Rationale, Calculus, Economy, Csts, Benefit.

Prevention of Transmitting Incomes of Organized Crimes in Iran’s Criminal Law and International Documents

Yaser Gholamnejad

Ph.D. Student of Criminal Law and Criminology, Faculty of Law, Theology and Political Science, Islamic Azad University, Science and Research Branch, Tehran, Iran

&

Dr. Mohammad Ali Mahdavi Sabet

Associate Professor of Criminal Law and Criminology, Faculty of Law, Theology and
Political Science, Islamic Azad University, Science and Research Branch, Tehran, Iran

Abstract:

Nowadays, offences have had new forms with due attention to methods of their commission. Amongst them, it can be mentioned to changing method of commission of an offence, whether in a group or in an organized way. The organized offenders not only gain many financial advantages by their widespread activities, but also by their criminal activities, they attain power of effect on other economic, social and politic sections. Therefore, today one of the disturbances of administrators, who preserve security in society, is to resort to a set of social and situational preventive actions as well as punishing plans and equitably corrective training for guilties, until with making harder commission of offence process and its next steps, specifically preventing transmitting incomes of these crimes, we can prevent spreading them in societies.

Therefore, some international documents related to these kinds of crimes such as Merida and Palermo conventions have introduced some actional and reactional activities and they have suggested some plans in order to effectively confront with transmitting incomes of these kinds of crimes at national and international levels.

So, the state of Islamic Republic of Iran also has attempted to deduct preventive actions in some conventions such as Promoting Ministerial Health and Conflicting Corruption Convention, Conflicting Money Laundering Convention with due attention to international documents.

Keywords: Organized Crimes, Incomes of Crimes, Crimes, International Documents.

The New Criminal Procedure Law Approach to Witness and Informed Rights in the Preliminary Research Phase and its Compliance with International and Regional Documents

Abbas Akhtari

Department of Law, U.A.E Branch, Islamic Azad University, Dubai, U.A.E.

&

Dr. Hassan-Ali Moazen Zadegan

Department of Law, Associate Professor of Criminal Law and Criminology,
Allameh Tabataba’i University, Tehran, Iran

Abstract:

The testimony as a proof of crime, after confession, has a special place in Iran’s criminal justice system and unlike some of the evidence, such as confession, education requires citizens to participate. In this process, the fulfillment of the functionalist role for intuition and knowledge requires the use of certain supportive methods that are rooted in the protection of individual and social rights and, to a significant extent, have the foundations of human rights. Therefore, in order to understand the basis of these measures, it is desirable to draw up its provisions based on the protection of human rights and human dignity and the promotion of justice. The Iranian version of Iran’s Code of Conduct also replaced the passive approach in the new version in comparison with the previous laws and determined the definition and allocation of the special rights of witnesses and informers. The comparison of domestic law with international and regional documents also reflects the relative alignment of the current domestic lawmaker’s approach to human rights standards. However, in some areas such as women’s testimony, we have faced challenges. However, the results of our studies have shown that the Criminal Procedure Code provides more legitimate regulation than the role of witnesses and informants in comparison to former laws.

Keywords: Witness’s Rights, Informed Rights, Initial Investigations, Criminal Procedure Code, International and Regional Documents.

 

Legal Analysis of the Illegal Alteration of Land Use by Fencing in Agricultural Lands and Gardens with an Emphasis on Judicial Precedent

Dr. Hamid Bahremand

Assistant Professor, Department of Criminology and Criminal Law, Faculty of Law
and Political Science, Tehran University, Tehran, Iran

&

Naser Ghanbarian

M.A. in Criminal Law and Criminology, Faculty of Law and Political Science,
Tehran University, Tehran, Iran

 

Abstract:

The unauthorized alteration of land use was criminalized in 1374 and has been amended in 1385. Although it can be compared with destruction and illegal possession, this offense is defined as a specific crime and has its own elements. There is two kind of unauthorized alteration: the alteration through conducts specified in note 1, article 1, without the permission of the commission mentioned in this note, and through conducts specified in note 4 without obtaining the agreement of the Agricultural Jihad Organization of the provinces and without observance of environmental regulations. To be convicted of this crime two element must be proved: The requirements of regulations related to the alteration of use and the “reserve of continuity of production” requirement is violated. Fencing in Agricultural Lands and Gardens considering that it is dependent on the agricultural sector, is subject to the conducts specified in note 4 of article 1 of Conservation of Agricultural Land and Gardens Act, approved in 1385, and requires the approval of the provincial Agricultural Jihad Organization and compliance with environmental regulations if it is not supposed as an obstacle to the continuation of production. This paper, with a descriptive-analytical approach and taking into account the Conservation of Agricultural Land and Gardens Act, approved in 1374 amended in 1385, as well as focusing on the judicial precedent of the Iranian criminal courts, concluded that, if fencing in agricultural land and gardens prevents the continuation of production in the agricultural sector, the unauthorized alteration offense occurs.

Keywords: Unauthorized Alteration of Land Use, Fencing, Agricultural Land, Gardens, Judicial Precedent.

Penological Analysis of Customary Penal Code

Dr. Mahdi Sabooripour

Department of Criminal Law in University of Shahid Beheshti, Tehran, Iran

&

Iraj Khalilzadeh

Student of Criminal Law in Ph.D. in University of Shahid Beheshti, Tehran, Iran

Abstract:

Customary Criminal Code (1916) is the first substantial code in Iranian criminal law. This Code is ratified about 38 years after Counte Code (1879). Its importance is that it makes the substructures of its post criminal codes. This Code is very important due to new division of crimes, penalties and explanations of Counte Code which was unprecedented. These regulations show Iranian criminal law developments and Iranian legal social culture in 100 years ago. Many of current criminal law organizations go back to even pre-constitutional period. Recognition of the typology of crime and punishment in customary penal code is of great importance. So that, this law has many effects in criminalization, the new division of crimes, determination of various penalties, especially imprisonment, identification of different institutions and principles predictions such as the principle of legality of crimes and punishments on the penal codes after itself (from 1304 to 1392). The crimes divided into three groups of crimes against persons, property and security the first time was done by this law and the sentence of imprisonment organized and widespread in this way entered into Iran Criminal Law System. In the present article explain the penological analysis of Customary Penal Code and the statement of the penals system of this law and penological evaluation based on the functions of punishment.

Keywords: Customary Criminal Code, Firooz Mirza Nosratodoleh, History of Criminal Law, Crimes and Penalties Typology, Penology.

Feasibility Study of Utilization of Modern Criminal Institutions in Islamic Prescribed Punishments (Hodud)

Hossein Khodayar

Student of Ph.D. of Criminal Law and Criminology of Allameh Tabataba’i University, Tehran, Iran

&

Dr. Rahim Nobahar

Associate Professor, Faculty of Law, Shahid Beheshti University, Tehran, Iran

Abstract:

In traditional view in Islamic jurisprudence, Prescribed Punishments (Hodud) are often understood as unchangeable and inflexible. This, in its turn, has led the modern criminal institutions not to be applied in prescribed punishments. Indeed, while modern criminal entities are welcomed in discretionary punishments (Tazirat), they have been hardly welcomed in Hodud. The result has been a more differential system of punishment containing had and Tazir with different laws and rules. Having chosen an analytical-critical methodology, this paper shows that even inflexibility of prescribed punishments is not a cause for modern criminal entities not to be applied in them. Reliance upon unconditionality (Itlaq) of the evidences related to prescribed punishments is not a sufficient and convincing argument to put prescribed punishments far from the modern entities. Also this paper shows that impermissibility of postponement of Had and its cancelation, as insisted in religious texts, is not inconsistent with criminal concepts like deferment of judgement, suspension of punishment and prohibition of double punishment.

Keywords: Modern Criminal Entities, Prescribed Punishments (Hodud), Cancellation of Had, Postponement of Had, Prohibition of Double Punishment.

 

 

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