نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشیار، گروه حقوق جزا و جرمشناسی، دانشکده حقوق و علوم و سیاسی، دانشگاه فردوسی مشهد، ایران
2 دانشجوی دکتری، گروه حقوق جزا و جرمشناسی، دانشکده حقوق و علوم و سیاسی، دانشگاه فردوسی مشهد، ایران
3 دانش‌آموخته کارشناسی ارشد، فقه و حقوق جزا، دانشگاه شهید مطهری، مشهد، ایران
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Introduction
An analysis of specific laws enacted in recent decades reveals that while the legislator has generally adhered to the principles of criminal law in foundational legislation, these principles have often been overlooked in more detailed laws addressing particular crimes. The Law on Protection of “Amr bil Ma’ruf wa Nahy anil Munkar” is one such specialized law. This research specifically critiques Note 7 of this law, which establishes the general applicability of crimes against enforcers (“ameran va nahyan”) even in cases where the plaintiff has granted forgiveness.
The primary objective of this study is to critically examine the formulation and implementation of this note, assessing its inconsistencies with general criminal law principles. The central research questions are:
1. To what extent does Note 7 align with the general principles of criminal law?
In what ways does it conflict with these principles?
Methods
The analysis of Note 7 was conducted in two stages:
Legislative Stage: The phrasing of the note was evaluated for compliance (or conflict) with fundamental criminal law principles.
Implementation Stage: By attending specialized Chastity and Hijab court sessions, interviewing judges, and reviewing judicial records, three distinct judicial interpretations of the note’s application were identified and critically assessed. The research employed a qualitative methodology, combining in-depth interviews and judicial document analysis.
Results and Discussion
Although the legislator sought to provide special protections for those combatting societal vices and upholding religious obligations, Note 7 fails to articulate this intent clearly and conflicts with several core criminal law principles, including:
The Principle of Legal Transparency: The note lacks clear criteria for classifying crimes under Articles 614 and Note 286, creating ambiguity.
The Principle of Legality (Nullum Crimen Sine Lege): By disregarding the conditions and limitations specified in Article 614 and Note 286, the note violates the requirement for precise legal definitions.
The Principle of Lenity (In Dubio Pro Reo): The broad application of the note to all crimes, without regard for contextual sensitivity, contradicts the presumption of innocence.
Furthermore, the implementation of Note 7 has led to additional violations:
Judicial Discretion: Divergent interpretations by judges undermine the Principle of Legality, leading to inconsistent rulings.
Overextension of the Law: Sentences issued under this note often exceed its conceptual scope, violating both the Principle of Lenity and the Principle of Strict Construction (narrow interpretation in favor of the accused).
Conclusions
The primary cause of these violations lies in the ambiguous wording of Note 7, which has led to fragmented and contradictory judicial interpretations. Criminal laws must be explicit, clear, and transparent to ensure both public compliance and uniform judicial enforcement. To rectify this, the legislator should:
1. Clarify the intent behind Note 7 through an official interpretation (inquiry law).
Amend the note to align with Islamic criminal law principles, ensuring precision and consistency.
By addressing these issues, the law can better achieve its intended purpose while upholding fundamental legal safeguards.
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Cases
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