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Open Access Article
1 - The History of the Principle of Judiciality of Punishments
Sayed Mahmoud Majidi Mahdi ZolfaghariDetermination and execution of punishment as well as existence of a systematic criminal proceeding have invariably been among most important controversies over punishment. By the principle it means that whole of the criminal proceeding such as investigation, trial and s MoreDetermination and execution of punishment as well as existence of a systematic criminal proceeding have invariably been among most important controversies over punishment. By the principle it means that whole of the criminal proceeding such as investigation, trial and subsequently execution of the punishment should be done by a competent judicial authority. In the religious thoughts the authority called Imam or Governor or Judge. Accordingly people who lack the competence cannot intervene in the affairs and take arbitrary measures. The paper is devoted to development of the principle and determining its position. Although Article 36 of Constitution expressly embodied the principle in itself, it have been experienced an uneven road in its way to Criminal Code (2013). The act devotes a separate Article providing for the principle a long whit principle such as presumption of innocence and legality of crimes and punishments. But the principle is surrounded by exceptions some of which are new. Manuscript profile -
Open Access Article
2 - Achievements of human dignity in sentencing
Farahnaz Nazeri sharibani Alireza SaberianThe present study examines the attention and adherence to human dignity and has a significant impact on the rights of offenders, plaintiffs, plaintiffs and defendants, and the extent of punishment in a criminal system. Therefore, in terms of purpose, it is applied and p MoreThe present study examines the attention and adherence to human dignity and has a significant impact on the rights of offenders, plaintiffs, plaintiffs and defendants, and the extent of punishment in a criminal system. Therefore, in terms of purpose, it is applied and problem-oriented, and the type of research is descriptive-analytical. In this study, an attempt has been made to answer the question of what are the achievements of human dignity in sentencing? The results showed that human dignity as a universal principle of religious and Islamic universality and an international norm related to human rights has introduced criteria in determining punishment such as equality, proportionality, human punishment and in the field of criminal law. Manuscript profile -
Open Access Article
3 - Tax violations in the European Court of Human Rights
mohammad reza yosefiOne of the achievements of human rights and the initiative of the European Court of Human Rights is the concept of criminal matters. One of the important elements of the application of Article 6 of the European Convention on Human Rights, which includes the criterion of MoreOne of the achievements of human rights and the initiative of the European Court of Human Rights is the concept of criminal matters. One of the important elements of the application of Article 6 of the European Convention on Human Rights, which includes the criterion of fair trial, is the entry of the guarantee of the implementation of the provision into the criminal matters. In the law of direct taxes, there is a guarantee of executions for tax violations, which in case of entering the criminal matters, it will be necessary to observe the principles of fair proceedings. The main question of this research is to compare the criminal scope of tax violations in Iran's legal system with the practice of the European Court of Human Rights. In order to answer this question, we will first discuss the concept of criminal matters and its criteria, then guarantee the implementation of the aforementioned violations, and finally, the procedures related to dealing with this type of violations. Manuscript profile -
Open Access Article
4 - Prosecutor's Role in Ensuring the Rights of the Accused in the Iranian Islamic Law and Common Law Legal System
Faramaraz Sanjarani Fakhr Hossein Reza Fani Abbas Ali AkbariThe accused person should have some tools to prove his/her innocence. Because this person has a special position in the criminal proceedings while the sovereignty. Some cases have led to the Iranian legislator ignorance of accused person's right in the process of approv MoreThe accused person should have some tools to prove his/her innocence. Because this person has a special position in the criminal proceedings while the sovereignty. Some cases have led to the Iranian legislator ignorance of accused person's right in the process of approving the criminal procedure Law in 2012. These cases are: Iran Criminal Justice System's effectiveness from the inspection system and its limitation like the impossibility of lower's interference during the investigation, ignoring the requirements of a fair trial, working the same authority for referral, prosecution, investigation, trial and execution of the sentence, and the same failure to foresee a differential trial for some crimes such as crimes against security. Prosecutor's office is the first judicial institution in dealing with crime, which has a very vital and fundamental role in filing and creating criminal cases, maintaining their order and creating social and judicial security. We tried to use a descriptive and analytical method in collecting contents from library sources, to evaluate the fundamentals and general principles and provisions governing the accused person's rights and prosecutor's role in this field of Iran legal system and common law. The criminal justice system of our country can be closer to the new criminal justice systems in future developments by localization of some available executions guarantees in the common law. Manuscript profile -
Open Access Article
5 - The Legal Principles of Reconsideration of Judge's Vote
Jafar Jafarzadeh Mohammad Jafari Harandi Rahmat FarahzadiObviously, the truth is that the judge is not immune from error and mistake by virtue of being human. In each case, the probability of mistake and error cannot be ruled out, therefore, it is necessary to monitor the manner of judgment and the issuance of a verdict, and MoreObviously, the truth is that the judge is not immune from error and mistake by virtue of being human. In each case, the probability of mistake and error cannot be ruled out, therefore, it is necessary to monitor the manner of judgment and the issuance of a verdict, and on the other hand, the acceleration of the investigation and the season of hostility require that the supervision of the proceedings to be over at one point. The precision in the proceedings and monitoring the manner of the courts procedure in the above instances involve great importance, but it should not be in such a way that to preclude the termination of claims, henceforth in most countries, after two degrees of litigation. It is assumed that the verdict is in accordance with the fact that it is strictly forbidden to appeal the case (the validity of the closed case). Today this rule is considered to be the most basic rules of procedure, which in the two-stage hearing, in the time of the protest to the verdict and the period for the review, the enforcement of the ruling of the first court, shall be suspended. Manuscript profile -
Open Access Article
6 - The principle of openness of the trial In Iranian law ,Islamic jurisprudence And English law
Vahid KHandani MOHAMMAD BAGHER AMERINIA GHavam KarimiThe openness of the trial means that members of the public can freely attend court hearings, closely observe how things are going, and ensure that the law is strictly enforced and that there is real judicial justice. By applying this principle, the judge can not abuse h MoreThe openness of the trial means that members of the public can freely attend court hearings, closely observe how things are going, and ensure that the law is strictly enforced and that there is real judicial justice. By applying this principle, the judge can not abuse his legal authority for fear of public scrutiny and arbitration, and as a result, this principle can greatly help increase the quality of justice and the issuance of fair judgments in the courts. However, some legal systems believe that the courts cannot suffice with general terms such as public order and ethics, but are obliged to make the reasons for such action clear to the public The principle of openness of the trial has been considered by the holy shari'a and in the four sources the inference of the rulings (book, tradition, consensus, reason) has been explicitly stated and has also been approved by Islamic jurists; According to Article 165 of the Constitution of the Islamic Republic of Iran, which is the most important legal document of the country, trials must be held in public, which has shown the importance of this issue in the eyes of the legislator; In English law, based on the principle of justice and natural law, the principle of openness of trial is emphasized; Of course, in Iran, due to the disturbance of the court order, sometimes this principle is not implemented, which can be easily solved by considering solutions such as punishment for those who disturb the order of the hearing, including the litigants and those present, and proper management of the hearing by the judge. Manuscript profile -
Open Access Article
7 - Obtaining a criminal reason by relying on illegitimate actions
smaiil ghamari اکبر وروایی masood ghasemiAccording to the Code of Criminal Procedure and the principles of the Constitution, resorting to illegitimate and illegal actions in obtaining criminal evidence is prohibited, and any action taken in this regard without relying on the relevant laws is not audible due to MoreAccording to the Code of Criminal Procedure and the principles of the Constitution, resorting to illegitimate and illegal actions in obtaining criminal evidence is prohibited, and any action taken in this regard without relying on the relevant laws is not audible due to lack of evidence. It is possible for a person to take local and illegal measures to trap people in committing a crime. In fact, he encourages, incites, entices, etc. in accordance with Article 126 AH. M.A. should be prosecuted as a deputy of the crime. The whole process of criminal proceedings from the beginning to the end should be done according to the explicit text of the law and the law of the final chapter of any lawsuit There is no doubt that honorable judges who rely on their conscience will never generalize the reasons obtained through illegitimacy by resorting to unusual and illegal methods in the study of criminal reason. Give. The purpose of this article is to determine the practical and efficient criteria in ensuring a "fair trial" in the field of criminal procedure and the guidance and guidance of the legislator in preparing and compiling the reason for proof in criminal matters as the most important chapter of the criminal procedure chapters. Manuscript profile -
Open Access Article
8 - دادرسی عادلانه در رسیدگی به جرایم سایبری نیروهای مسلح
sajad fatahizafarghandi مهدی esmaeli hasan hajiIn the present study, a fair trial in cybercrime has been investigated by descriptive-analytical method. The result of the present study shows that the Code of Criminal Procedure of the Armed Forces and Electronic Trial, approved on 7/8/2014, has many positive aspects a MoreIn the present study, a fair trial in cybercrime has been investigated by descriptive-analytical method. The result of the present study shows that the Code of Criminal Procedure of the Armed Forces and Electronic Trial, approved on 7/8/2014, has many positive aspects and points regarding the observance of civil rights, the rights of the accused, the right of defense, the lawyer, the trial process, guarantees. The trial is fair and just. If it undergoes general and serious changes, and by drafting executive regulations, its presence, using the professional experiences of experts, judges and lawyers, can be effective in guaranteeing the citizenship and fundamental rights of the people. The new Code of Criminal Procedure, with extensive numerical, formal and substantive changes in the Code of Criminal Procedure and the manner of prosecution of the accused, typically tends to apply the "principle of narrow interpretation in favor of the accused", observing the principles and norms of civil and human rights and trying to achieve the judicial system. Has justice to the plaintiff, mine, victim, witness, informant, lawyer and the like in the criminal proceedings. In the mentioned law, while removing many restrictions and obstacles regarding the right of defense and the defendant from the accused, the principle of the need for a lawyer and his right to defend the accused as his client and the need to understand the legal rights of the accused by the judiciary and Judicial officers put in all criminal matters. Manuscript profile -
Open Access Article
9 - Analysis of the right of a lawyer to appear in the trial stage in Iranian criminal law
mohamad andalib hosein aqaei janat makanBackground and Aim: Advocacy is one of the most important institutions that can play a constructive role in the process of justice, so advocacy is a job that is very important in the order or disorder of the legal and judicial system of any country. . The presence of a MoreBackground and Aim: Advocacy is one of the most important institutions that can play a constructive role in the process of justice, so advocacy is a job that is very important in the order or disorder of the legal and judicial system of any country. . The presence of a lawyer in judicial trials will greatly facilitate the discovery of the truth and prevent the abuse of citizens' rights. The necessity and importance of the right to defense has led the advanced legal and judicial systems of the world to view it as an important element of a fair and just trial. Therefore, the presence of a defense attorney at the trial stage is one of the most important and basic rights of the accused, and with these characteristics, representation in criminal matters has a special importance and position.Method: The research method in this article is descriptive-analytical. This means that the necessary information has been collected using various sources such as libraries, articles, websites, etc. and has been analyzed using principles, legal and logical rules.Findings and Results: The results of the study indicate that in the Iranian legal system, defendants can use a lawyer during the trial, advice and timely defense, to exercise their rights. The lawyer almost has functions such as influencing the legislative and judicial policy of each country. However, the authors have examined the issue of advocacy in the Iranian criminal proceedings, which is based on a one-tier system of advocacy, namely defense counsel. Manuscript profile -
Open Access Article
10 - The role of the judiciary in maintaining the position and security of judges with emphasis on Article 164 of the Constitution
hosein mozafari Ruhollah Rahami mahdi shekh movahed mohamad moqadam farField and Aims: The independence of judges and judicial justice systems has deep roots in jurisprudence and religious beliefs. In Iran, the legislator of our country, based on the constitution which is rooted in Islamic jurisprudence, has foreseen the independence of th MoreField and Aims: The independence of judges and judicial justice systems has deep roots in jurisprudence and religious beliefs. In Iran, the legislator of our country, based on the constitution which is rooted in Islamic jurisprudence, has foreseen the independence of the judiciary and the judge in the constitution, and this law has guaranteed the independence of this branch. The independence of the judge and judicial system is considered as a principle of fair and just proceedings in all the legal systems of the world today and it is a basic guarantee for the realization of a fair trial without which the realization of justice is not possible.Method: The present research was carried out using a descriptive analytical method.Finding and Conclusion: The independence of judicial authorities has been accepted in international documents and Iran's legal system, in the principles of the constitution, which shows the freedom of the judge from any interference and influence of other authorities. Judicial independence means that the judicial system, especially the judge, is not influenced by non-legal factors and the prohibition of the intervention of those with power and wealth in the proceedings. Since the observance of this principle is considered a prerequisite for the administration of justice, the protection of citizens' rights and the provision of their legitimate freedoms, its observance has been the subject of consensus in all legal systems, although different guarantee mechanisms have been used.Therefore, despite the existence of legal provisions, the principle of judicial independence in Iran's legal system has not been fully actualized and has fundamental flaws that require the amendment of some relevant laws in this regard, so that, as a result, the principle of judicial independence in Iran's legal system is also international law to be realized. Manuscript profile -
Open Access Article
11 - Prosecution to trial in the International Criminal Court and explanation of precursors to justice in the proceedings
ebrahim firoozian haji Karan RouhaniAccording to the researches on the elements and components of precursors of justice in international criminal proceedings, it can be claimed that today the use of these precursors has a high place in the documents and procedures of the International Criminal Court. It i MoreAccording to the researches on the elements and components of precursors of justice in international criminal proceedings, it can be claimed that today the use of these precursors has a high place in the documents and procedures of the International Criminal Court. It is used through various mechanisms at different stages of the proceedings, from the beginning of the investigation to the appeal and execution of the sentence. Restrictions and oversight of the prosecutor's office, the right of the accused to be present at the hearing, the influence of human rights considerations on trials, the observance of the guarantees of a fair trial, the widespread recognition of the right to appeal and many others are just some of the precursors to justice, which are observed within the framework of the International Criminal Court. However, some ambiguities, as well as the dual nature of international criminal proceedings which is rooted in both common law and civil law legal systems, have made it difficult to follow the precursors of justice. However, the establishment of objective elements, as well as a careful and thorough examination of the procedure of the International Criminal Court and Adhoc Triabunals, can provide more objective criteria to ensure a fair trial and ultimately justice. Manuscript profile -
Open Access Article
12 - THE EFFECT OF THE EMERGENCY STATE ON THE LACK OF AN APPEAL STAGE IN THE SPECIAL COURTS OF ECONOMIC CRIMES
Sohrab Neshastehriz Mahmoud Malmir Masoud HeidaryFields and Aims: The process of differentiation of criminal procedure in the field of Economic criminality is due to factors such as globalization of criminal law, inability of the criminal justice system and inefficiency of traditional principles of criminal procedure MoreFields and Aims: The process of differentiation of criminal procedure in the field of Economic criminality is due to factors such as globalization of criminal law, inability of the criminal justice system and inefficiency of traditional principles of criminal procedure in responding successfully to it. In this process some of criteria such as specialization,rapidity and severity of the criminal response are followed. Approval of executive by-law on how to deal with major crimes disrupting the countries economic system which was approved on 29/09/2020 during the Economic War of post (JCPA) is one of the examples of this process, which according to Article 19 the majority of the rulings of courts subject to this article are final and despite severity of charges and convictions they lack appeal stage and sole purpose is to ensure execution of the sentence. This issue is not compatible with the recognition of the right to appeal as one of the principles of governing a fair trial.Methodology: the present Article has been done by descriptively-analytically method.Findings Conclusion: we have come to the conclusion that this issue is in the line with the criteria for describing the State of Emergency in some international documents and seems to be justifiable. Also, in the opinion of the authors it seems to be essential the recognition of the right to appeal against all rulings issued by-law in the courts subject to this regulation which is similar to that provided for in the Code of Criminal Procedure (2013) for Wartime Military Courts. Manuscript profile -
Open Access Article
13 - Critics on the Compensation Regime for "Unjust Imprisonment and Detention" In Iran's Legislative Criminal Policy
Mahdi Khaghani EsfahaniCompensation for innocent detainees and prisoners is a relatively new legal establishment. Compensation for damages by the government following judicial errors is a development in respect for human rights in the criminal process, which is influenced by developments in c MoreCompensation for innocent detainees and prisoners is a relatively new legal establishment. Compensation for damages by the government following judicial errors is a development in respect for human rights in the criminal process, which is influenced by developments in criminological knowledge, critical criminology, and related sciences. Articles 255 to 258 and 518 of the Iranian Code of Criminal Procedure and Articles 163 and 13 of the Islamic Penal Code provided a legal basis for compensation for innocent convicts. The instances specified in the law are exclusive and it is not possible to expand the scope of compensation for such individuals by developing the subject and comparing it to similar cases; However, the beneficiary and the victim will have the right to claim damages for invoking other jurisprudential principles and rules, such as the no-harm rule and the negation rule. Therefore, the principles of human rights and jurisprudential rules are one of the most important principles of compensation for innocent defendants and convicts.This article, after criticizing the legal provisions related to compensation for unjust detention from the perspective of Iran's legislative criminal policy in the light of jurisprudential principles and international documents, explains that the national and provincial commissions for judicial compensation, despite alignment with the idea Islamic Guarantee and Restorative Justice, Due to the Continuity of Punishment Overcoming the Judicial Sub-Discourse - Despite the Main Rehabilitative and Restorative Discourse - and Due to Legal and Structural Defects, They Have Not Been Transformed the Doctrine of Compensation into Improper Detention by the Judiciary Formation. In the end, it is suggested that the application and ambiguity of paragraph "c" of Article 256 of the Code of Criminal Procedure be restricted so that it does not become a platform for escaping from compensation. Manuscript profile
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