Criminal Law
Shirindokht Pirouzanfard; Mohammad Jfar Habibzadeh; Seyed Doraid Mousavi Mojab
Abstract
The agreement of the governments in the Millennium Declaration of the United Nations in 2000 to eliminate poverty, hunger and provide housing for the citizens and choosing October 10th since 1986 as "World Homelessness Day" by the "Human Settlement Program" The United Nations is well aware that the increase ...
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The agreement of the governments in the Millennium Declaration of the United Nations in 2000 to eliminate poverty, hunger and provide housing for the citizens and choosing October 10th since 1986 as "World Homelessness Day" by the "Human Settlement Program" The United Nations is well aware that the increase in the number of homeless people as a social harm has made governments struggle. Homeless people face criminal interventions and coercive responses due to disrupting order and security and creating fear among citizens and as violators of social norms. Criminalization of homelessness and criminalization of some inevitable and vital actions of the homeless, such as pitching tents, sleeping and urinating in public places, roadblocks, etc., which ultimately lead to their collection, fines, imprisonment, hospitalization Compulsory and other coercive measures are considered to be one of the most important manifestations of criminal intervention in the field of homelessness. In addition to reactive and repressive measures, resorting to welfare policies, support, preventive measures and non-criminal interventions in dealing with homelessness is also important.This article tries to express criminal and non-criminal approaches to homelessness and evaluate the effectiveness of these interventions. The results of the research indicate that the punishment of the homeless and the use of punitive and repressive methods as well as the preventive and corrective methods of clinical criminology have not been effective. On the other hand, treatment-oriented and problem-solving approaches with the close cooperation of the judicial and treatment systems, as well as mixing punishment and treatment, prevent the cycle of repeating homelessness.
Philosophy of Law
Mahdi Samaei; Mohammad Jfar Habibzadeh
Abstract
Two categories of the judicial role in political society can be separated: the activist judge and the self-restrained judge. The activist judge utilizes the judicial office to realize social ideals such as protecting people's rights and social justice. On the other hand, the self-restrained judge tries ...
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Two categories of the judicial role in political society can be separated: the activist judge and the self-restrained judge. The activist judge utilizes the judicial office to realize social ideals such as protecting people's rights and social justice. On the other hand, the self-restrained judge tries as much as possible to apply the law with a textual approach and avoids activism. The article provides a theoretical framework for understanding judicial activism. Judicial activism has significant risks and may harm legal values such as the rule of law, separation of powers, and democracy. Despite all this, the article argues that we can talk about legitimate judicial activism under certain conditions. So we must think about the activism's direction and political context. The article shows that it is justified for judges to resist the "lawmaker's war against the rule of law" and actively protect people's rights against the encroachments of the ruling system..
Criminal Law
Mahdi Samaei; Mohammad Jfar Habibzadeh; Rahim Nobahar
Abstract
Judges have both considerable power and discretion in exercising it. Given the power and discretion, the personality of the judge is essential. Especially in hard cases, the "who is the judge" is no less important than the "what is the law". If the law is in the hands of a virtuous judge, it is more ...
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Judges have both considerable power and discretion in exercising it. Given the power and discretion, the personality of the judge is essential. Especially in hard cases, the "who is the judge" is no less important than the "what is the law". If the law is in the hands of a virtuous judge, it is more likely that his judicial power and discretion will lead to justice and fairness. Therefore the virtue approach to judicial judgment is important. The most important judicial virtues are: lawfulness, legal intelligence, judicial wisdom, courage, temperance, impartiality, independence, incorruptibility, judicial skill, justice, and compassion. An essential advantage of the virtue approach to judicial judgment is that it is compatible with the Islamic jurisprudential tradition. Thus, a rich dialogue can be established between modern virtue theory and the Islamic jurisprudential tradition. In the present article, while outlining the theoretical foundations, the application of the virtue approach in "judicial selection" is examined.
Mohammadjafar Habibzadeh; Mahmood Saber; Hossien Samie
Abstract
The demands of today's world and the Commitment of dangerous and harmful crimes by legal entities and the need for appropriate compensation for victims of damage and judicial -criminological considerations, have convinced legal systems such to accept criminal responsibility of legal entities. ...
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The demands of today's world and the Commitment of dangerous and harmful crimes by legal entities and the need for appropriate compensation for victims of damage and judicial -criminological considerations, have convinced legal systems such to accept criminal responsibility of legal entities. It is clear for credit institutions including banks, as well as other legal entities under certain conditions, to be eligible for criminal responsibility. But accepting criminal liability for credit institutions as legal entities, is accompanied by this fundamental question: what are the conditions and criteria for assigning criminal liability to credit institutions as legal entities? Representing approach as a criteria for attributing criminal liability to credit institutions as legal entities, is approved by the Iranian legislature in Article 143 of the Islamic Penal Code, but due to flaws in this theory, including the difficulty of identifying responsible individuals and complicated structure of credit institutions, accepting of corporate responsibility theory is consistent with the basics of Identifying of criminal liability for credit institutions as legal entities and the principles of justice and fairness. At the same time, imposing criminal liability on the banks and credit institutions, requires that the legal representative of bank or credit union, "the" or "in the interests" of the bank or credit union as a legal person, commits a crime. The concept of legal representative of Credit Institutions, realization time of legal personality of governmental and non-governmental Credit Institutions, the Conditions of criminal liability realization, have ambiguities that critical analysis of them, is concerned with this article.
MohammadJafar HabibZadeh; Valiyollah Sadeghi
Abstract
Some special defending rights have been recognized to make certain that trial process would be fair for someone who has been entered judicial cycle because of accusation of a crime. These can be called "human justice rights". Included in is not to be respondent or right to silence when asked by a judge ...
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Some special defending rights have been recognized to make certain that trial process would be fair for someone who has been entered judicial cycle because of accusation of a crime. These can be called "human justice rights". Included in is not to be respondent or right to silence when asked by a judge that in practice there are some worries about the degree to which an accused can benefit from his/her right and widespread criticism of the government’s absolute acceptance of this right. Somehow, this worry has been reflected in criminal procedure and new Criminal Procedure Act. In this article, we tried to explain not only concepts, types and accreditation basis, but also attitude to this right in international documents as well as in internal laws. Also included in are "wise discontinuation of silence" mechanisms so as to terminate silence through mechanisms like attention to criminal past history, to logical reasons of silence, to evidence, to victims as well as to encouragement.
Mohammad Jafar Habibzadeh; Mohsen Sharifi
Abstract
Although the Punitive Justice System has not restricted itself to penalties, in opposition to the intentional crimes-of course the serious ones- and predicted side penalties to deprive criminals from some crucial aspects of the social rights, it seems inevitable to adopt a number of redes, including ...
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Although the Punitive Justice System has not restricted itself to penalties, in opposition to the intentional crimes-of course the serious ones- and predicted side penalties to deprive criminals from some crucial aspects of the social rights, it seems inevitable to adopt a number of redes, including rehabilitation (legal, judicial and real) in order to prevent the crime repetition and to provide these actives with an open socialization process. The rehabilitation strategy which is rooted in the France Penal Law was adopted by the Iranian lawmaker in 1925, along with its defects. In 1973 the defects were nearly overcome. After the Islamic Revolution the strategy was nullified; since it was announced as non–religious by the supreme Judicial Council. Therefore, a considerable gap was appeared in the country's penal law. Then under the pressure of the positive and realistic criticisms of the lawyers and criminologists, the law maker revived the rehabilitation in 1998 as in the form of the repetitious article 62 of the Islamic Penal Law. The stance taken by the law is appreciable; however it has some essential defects. Now the Islamic Penal proposal has devoted its 25 and 26 articles (with some changes) to this problem whose comparison with the earlier regulations is the main purpose of this paper.
Hamed Rahmaniyan; Mohammad jafar Habibzadeh
Abstract
The phrase “Hodood that are not mentioned in this code” in Article 220 of Islamic Penal Code of 2013 and “Shar’i definite Tazir” in Article 115 of this code are ambiguous from Figh and legal viewpoint, then we have to resort to interpretation for recognizing their instances, ...
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The phrase “Hodood that are not mentioned in this code” in Article 220 of Islamic Penal Code of 2013 and “Shar’i definite Tazir” in Article 115 of this code are ambiguous from Figh and legal viewpoint, then we have to resort to interpretation for recognizing their instances, In this regard, three interpretations are possible, First, restricting “Hodood” to six famous types and allocating definite Ta’zir to punishments with definitive cause, kind and amount, Second, allocating Hodood to punishments with definite kind and amount and cause and allocating definite Ta’zir to punishments with definite cause and indefinite kind and amount, Third, allocating Hodood to punishments with definite cause and kind and amount of certain definite punishment and allocating definite Ta’zir to certain indefinite cause and kind and amount, In this article we consider different views and finally choose third interpretation as a non-instrumentalist one that has the highest moral acceptance, This accepted interpretation is consistent with rule of law and other certain legal principles,
Mohammad Jafar Habibzade; Mohsen Sharifi; Mohammad Isaei tafreshi; Mohammad Farajiha
Abstract
For reasons including inability to impose some punishments,violating the principles of being personal punishments, not realization of punishment goal, specificity principle, constraints on procedures and most importantly, lack of guilt evidences, in negation, as well as arguments ...
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For reasons including inability to impose some punishments,violating the principles of being personal punishments, not realization of punishment goal, specificity principle, constraints on procedures and most importantly, lack of guilt evidences, in negation, as well as arguments such as justice and criminology fact, difficulty of discovering the true culprit, scrutiny of the members and stakeholders in selection of managers, reduction of punishments for freedom hampering or injury of managers and finally compensation for damages inflicted on victims in a favorite manner have been expressed in proving criminal liability of the legal entities. Counterpoint approaches impact on the legal systems was so that until the twentieth century, the legal entities' liability was put in doubt as a principle. But since the second half this century following the legal entities activity scope, especially the companies, and rise of crimes against environment, organized crimes, specifically transnational crimes, crime in the field of transportation and industry in general caused the leading countries as Canada, England, United States,Netherlands and the Europe Council to accept and regulate the criminal liability of the legal entities as a must, despite of criminal law shortcomings, through relying on theories such as vicarious liability, secondary character, employers and superiors' responsibility, collective guilt and criminal liability of the legal persons. Alnahayah the movement for criminal liability of the legal entities, made Iran to join the system; so that inability for in the first step cyber crimes 2009 in particular, and in the second step for the Islamic penal law, in general were accepted. Scrutiny in transformation of the Iranian law in this regard, specifically in the above mentioned bill has been the effort of the present paper.
Sohrab Salahi; Ali Khaleghi; Mohammad Jafar Habibzade
Abstract
Following occupation of Iraq by foreign forces in 2003, Abu Ghuraib prison near the Baghdad, became a local for keeping the opponents and protestors of occupation. During keeping prisoners in this jail, many mistreatments were against them by the American military that was charge of the Bureau of Prison. ...
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Following occupation of Iraq by foreign forces in 2003, Abu Ghuraib prison near the Baghdad, became a local for keeping the opponents and protestors of occupation. During keeping prisoners in this jail, many mistreatments were against them by the American military that was charge of the Bureau of Prison. Some of these measures were Torture and war crime.
To prosecute and punish defendants of these crimes in criminal justice, there are several judicial mechanisms in national and international levels that of which it can be noted the role of the International Criminal Court. In this paper, studying competency we stressed obstacles and limitations confronted each of these bodies, that national courts in raising the flag of combat with impunity has noble and considerable status.
Finally, we reached this conclusion that Iraqi court as a competent court of occurrence the crime and the courts of third countries from the perspective of has suitable situation for prosecute and punishment defendants these wretched incidents.
Mohammad Jafar Habibzadeh; Hamed Rahmanian
Abstract
Pornography, thatmeanspresentationofexplicitsexualscenesinanartisticorliterarywork, isaphenomenonthat, duetoit’scountlessdestructiveconsequencesonpublicandindividualchastityandmoralityandalsoonfamilycircle, iscriminalizedinthelawofmanyofcountries. IntheIraniancriminallawseveralbehaviorsrelevanttothepornographyhadbeencriminalized, ...
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Pornography, thatmeanspresentationofexplicitsexualscenesinanartisticorliterarywork, isaphenomenonthat, duetoit’scountlessdestructiveconsequencesonpublicandindividualchastityandmoralityandalsoonfamilycircle, iscriminalizedinthelawofmanyofcountries. IntheIraniancriminallawseveralbehaviorsrelevanttothepornographyhadbeencriminalized, ifthereareothercircumstancesrelevanttoperpetrator, victim, recipientoftheseworks, matterofcrime, instrumentofcommitment, andalsoexistenceofmensrea; providedthattheseactionsdonotcommittedforthescientificpurposesoreachotherreasonableinterests. Mostpenaltiesconsideredfortheseoffensesarewhip, prison, finesanddeprivationfromsocialrights; butinsomecaseslegislatorgrantstothejudgesanauthorityforassignmentofperpetrator’sacttothecorruptiononearth (ifsad-fil-arz) andsentencingofexecution. Thisarticle, forbetterpreservationofsocietyfromharmofpornographyandalsopreservationofcitizensanddefendants’srights, revealsthenecessityofcodificationacomprehensivecoderegardingtothepornographyandabolitionofcurrentsporadicandopponentlawstoremoveambiguityfromthem.
Mohammad Jafar Habibazdeh
Volume 65, Issue 34 , March 2001, , Pages 69-92
Mohammadjafar Habibzadeh
Volume 60, 17-18 , September 1996, , Pages 25-44
Mohammadjafar Habibzadeh
Volume 60, 15-16 , March 1996, , Pages 55-86
