International Science and Investigation Journal
ISSN: 2251-8576
2016, 5(2)
Conference Proceeding- Tisfoon
Journal homepage: www.isijournal.info
Foreign Criminal Sentences Recognition And Enforcement In Legal
System Of Iran
Amin Elahian1
1MA
of Criminal Law and Criminology( Islamic Azad Univercity- Science and Research
Branch of Tehran)
[email protected]
Abstract:
In the past the foreign criminal sentences non-enforcement that was based on criminal
law territorial jurisdiction and protecting national sovereignty was undisputed principle
in international law .But at present, low importance of geographical borders ,human
society demand to government mutual respect and increasing need for countries to have
legal assistance was forced governments to admit foreign criminal sentences recognition
and enforcement in international agreement in exceptional cases with protecting national
sovereignty and observing natural behavior observance .In this article we tried to
determine in what cases and under what conditions can foreign criminal sentences be
enforced or recognized with studying theoretical foundations, provision of Iran and legal
assistance agreements between Iran and other countries .
Key word: Sentences enforcement,
Sentences recognitions, Foreign courts ,
Governments Sovereignty,Convicts transportation ,Public order.
Introduction
in the past when international relations was limited and undeveloped Basically , foreign
court sentences enforcement or foreign provision implementation was unacceptable for
governments in domestic territory country based on territorial jurisdiction of
rules
principle. In this regard foreign criminal sentences enforcement was more importance
than other sentences because of direct relationship with sovereignty . But developing
states relation , need to legal aid for countries and establishing a unity legal system
led to countries retreat from Their positions Based on that in countries geographical
area is just executed sentences of domestic courts sentences On the cases that Have little
Relationship with public order and accept foreign
sentences Recognition and
enforcement .
In Iran before Islamic Revolution, large number of foreign sentences enforcement has
been mentioned because of high foreigners traffic and commuting . But after Islamic
Revolution for a while foreign sentences enforcement has not been paid attention in
provision ,Judicial assistance agreements and scientific research because of imposed war
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and Problems of sanctions .At present Iran has accepted foreign sentences Recognition
and enforcement in some of international agreements and laws by understanding
necessity of Flexibility against foreign sentences non-enforcement principle.
But in this article basic question is : first why Do governments not accept foreign
criminal sentences enforcement in their sovereignty Territory? , Second In what cases
dose Iran recognize and enforce criminal foreign sentences ?Third What conditions must
courts of Iran consider for foreign criminal sentences recognition and enforcement ?
Theoretically answersing these questions is essential for this reason that shows what
extent is Iranian criminal law system flexible and dynamic International exchange of
legal aid and harmonized with international community . Also practically specifying this
issue can resolve wandering of Iranian domestic courts in facing with foreign criminal
sentences. Regardless of issue importance motivation for selecting this topic is that
research about this issue is less , Sources and research on subject is scarce, There is no
comprehensive review about this issue and current regulations are not suitable to needs
and requirements . Therefore, in this paper, first theoretical foundations of this issue is
expressed then by examining laws and international legal aid agreements of Iran ,this
importance that in what cases isforeign criminal sentences enforced and recognized is
expressed. Finally condition of foreign criminal sentences recognition and enforcement
is analyzed.
1- Definitions and theoretical foundations
First of all, distinction between two concepts of Recognition and enforcementshould be
expressedfora better understanding of issue . Purpose of sentences recognition is that
jurisdiction of a country just accept Content of foreign sentences without enforcing it.
For example when the court considers implemented punishment in determining
punishment for a crime that has been dealt already and Has led to sentencing and
executing part of punishment .This means that Content of foreign court sentenceshas
beenRecognized because of
''double punishmentprohibition '' principle. But purpose
ofsentences enforcement is that Content of sentence finds External aspects .
ActuallyContent of sentenceRecognition is a preface for its enforcement but there is not
Accompaniment between its Recognition and itsenforcement.
general principle About countries position in relation to foreign criminal sentences
recognition and enforcement is that courts of a country don’t enforce foreign criminal
sentences there for foreign criminal sentences are executable in territory of ordered
government that has voted that and isn’t executable out of it .foreign criminal sentences
non-enforcement Principle not only has been accepted in written law system but also has
been accepted in Common lawsystem .
But this general Principle has exceptions, like any other Principle .Nowadays we observe
obstacles of foreign criminal sentences recognition and enforcement have been
decreased and governments have accepted foreign criminal sentences Recognition and
enforcement in their sovereignty territory in limited and exceptional cases because of
fading geographical boundaries, understanding human society need to mutual respect
between governments and increasing need to legal aid for countries .This has led to
some countries accept foreign criminal sentences enforcement in their Sovereignty
territory in rare cases .for example Switzerland is one of the rare countries that has
accepted foreign criminal sentences enforcement in Articles 3 and 5 of Penal Code and
article 94 of provision about national cooperation in criminal matters (adopted on March
20, 1981)Clearly and under conditions .In addition ,For execution Statute of former
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Yugoslavia court(Article 27) ,Rwanda International court(Article 26) and International
Criminal Court(Article 103) some countries Have announced they are prepared to enforce
sentences of this courts and therefore they have entered new exceptions in foreign
criminal sentences non-enforcement(Kaleghi,2004a:26).
Meaning of foreign criminal sentences recognition and enforcement theoretical
foundations is answer to this question that what is base of foreign criminal sentences
non-enforcement and how can we justify foreign criminal sentences Recognition and
enforcement in territory of acountry in limited and exceptional cases?Most important
reason in justifying criminal sentences non- enforcement is national sovereignty
protection .In this way criminal sentences enforcement is an example of sovereignty
because this requires to use force and coercion in limiting freedom of convicted
.Therefore Using government forces and mandatory tools for enforcing foreign criminal
sentences lead to weaken the loosening of the sovereignty and independence
foundationin the governments that enforce it. So if a country accepts to enforce foreign
criminal sentences Such as internal sentences that will Damage its Independence and
sovereignty .Even in support of this argument some French lawyers have insisted France
has no interest in ensuring foreign criminal sentences enforcement(puech,1998:472).
In addition to the above justification foreign criminal sentencesenforcementis faced with
another obstacle in Muslim countries that their legal system is based on Islamic law.
Foreign criminal sentences enforcement is not valid in Islamic jurisprudence Because
foreign Criminal sentences are ordered by the Judges that may have not necessary
conditions for judgment. This means that judgeship is enterprise in Islam and a person
who attains this position should have conditions Such as Maturity, wisdom, male gender,
faith, purity, justice, development , being priest . In Islamic jurisprudence If a judge have
not such conditions , his sentences will not be valid and it recalled unfair judgment in
Islamic jurisprudence. Sentences of foreign court judges is not valid in Muslim countries
because they have not this mentioned Conditions (Shakeri &Shirzadi far,2015:124) .
There are various arguments in exceptions of foreign criminal sentencesnon –
enforcement and Recognition Principle justification .One of this arguments is ''Res
judicataCreditDoctrine '' .Under this doctrinebecause of public order, a claim must be
finished At one pointand the issues that have been Considered once time must be closed
in to parties of claim permanently .Usually Court sentence are commandedAfter parties
of claim relentless efforts and this affair has much cost for Courts and parties of claim
. If there is possibility for retrial and Re-examine case , efforts of legal system will be
useless. Also we can not consider an end for claim . Therefore Court sentence is valid
when there was not retrial possibility. According to basics of res judicata credit doctrine it
can be told this principle runs about both of domestic and Foreign sentence. Therefore
this principle can be adherent with Foreign sentences enforcement .Because it is
possible that if Foreign court criminal sentences have not Credit for internal court a
person who already has been judged and has been punished because of crime will be
tried again when he appear e in other countries with out considering previous penalties.
Accordingly rights of Such citizen will be wasted With additional penalties .
Of course sometimes Other principles may affect this doctrine and this affair led to
Ignoring this doctrine by courts .Most important principle is "reciprocity" principle
.Courts of a country sentences is valid As well as validity of othercountriessentences in
that country. This principle is most important accepted principle in International rights.
Because this reciprocity forces countries to respect interests of other countries for own
interests protection .In Provisions of many countries such as Germany, Austria, Spain,
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Iran, Venezuela, Yugoslavia and Mexico reciprocity is essential for Credit of other
countries courts sentences . Also this principle is considered in Quran in Verse 61 of
Surah Al-Anfal . In this verse Allah orders prophet Muhammad If they are inclined to
compromise with you
and ask you peace you can compromise with
them(Mardani,2011:143) . The another principle that affect this doctrine is justice and
truth consideration .Therefore if sentences of foreign countries is contrary to natural
justice principle ,those will not have Res Judicata Credit.The third issue that limits Res
Judicata Credit doctrine is countries willingness in protecting own nationals .it means
that governments don’t enforce other country sentences into own Nationals because of
protecting own nationals(Edward,1985:173).
One of another justification about foreign criminal sentences recognition and
enforcement in Limited cases is judicial civility doctrine . Term " civility" is defined in
some references in this form "civility means is that The court of a country accept
Judicial decisions of other country because of Mutual respect no because of
commitment"(black,1995). According to this theory that is taken from theories of Grottus
and Vattel , Countries are not obliged to enforce Foreign regulations in their territory
because Such duty violate country independence .If a country accepts regulations of
another country in own territory In some exceptional cases it will be because of
observing own interests .Interests of each country demands to enforce foreign regulations
been forced in its sovereign territory for enforcing its regulations in out of its
territory(Almasi,1993:50-51) .Therefore judicial civility doctrine is based on of equality
between government and reciprocity .if this issue is unilateral it may lead to an
unpleasant relationship between governments.
International judicial civility doctrine is critical in this respect that it can not be source of
commitment and responsibility, Because in international law a action is under
responsibility when break mandatory regulation whereas Civility Violation is just
unfriendly act that may only interfere in international relations .Main objection about
civility is violating private international law in this form that in foreign documents
implementation reciprocity just creates commitment and responsibility for legislator and
judges .as a result accepting external provisions or documents dependent on arbitrary
Will of legislator and Judge.Of course, advocates of this theory have justifications in
defense, Such as this theory is considered in Legislation levels and legislator considers
interests of country when Creates provisions and they allude mutual interests of
governments(Tajmiri,2007:44-45) .
Also governments sovereignty can be a Justification about Foreign criminal sentences
recognition and enforcement In exceptional cases. According to this doctrine criminal
sentences of courts of a country is categorized in governments sovereignty .Because it
determines public interests of a country .According to revised law of United States
,government sovereignty is a action that guarantees a government public interest.
Therefore The court of a country should judge about other countries criminal sentences
that is one of sovereigntymatters. HoweverThis doctrine has been not mentioned frankly
in international or constitution law but it is one of concepts in
Constitution law.
Because according to
powers separation
principleJudicial investigation about
government sovereignty in own Territory is interference in Authority ofExecutive power
.
In this case One of judges inSupreme Courthas commented in Underhill V .Hernandez
Whereas every country should respect independence of other countries . courts of a
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countryDo not judge about
territory(Edward,1985:173). .
sovereignty
of
other
government
in
its
2-Foreign criminal sentences enforcement in Iran
Iran has also accepted foreign criminal sentences non-enforcement Principle and
Iranian courts can not enforce foreign criminal sentences .Even this Principle found more
credit in criminal law of Iran After revolution because of compatibility with some
Jurisprudence views .For example Guardian Council in opposition whith Parliament
decision about judicial assistance and convictedpersons transfer Agreement between Iran
and Syria recognized
this sentences enforcement is inconsistent with Islamic
regulations(opinion1523/21/80 dated 03.17.1380) whit this reason that this sentences are
ordered by ineligible and Non appointed Judges . Legal Department of judicial power
also commented about foreign criminal sentences non-enforcement On 08/19/83 that
foreign criminal sentences enforcement into Iranian has not legal authority and there is
not Legal authorization for ordered country renders offender to Iran with this condition
that Iran accepts
sentences enforcement. How can Iran enforce foreign criminal
sentences about nationals of Iran Without crime proof about them in Iranian courts.
Nonetheless foreign criminal sentences enforcement in sovereignty territory of Iran is
accepted in criminal law of Iran In exceptional cases. ''Convicts transfer'' and
''determinate Punishments enforcement in sentences of International Criminal Court are
cases that Iran accepted foreign criminal sentences enforcement in own sovereignty
territory .In following we will study these two issues :
2-1 Convicts transportation
According to ''Territory competence'' principle .criminal law of a country is executed
about all the persons who committed offense in Sovereignty territory of that country
.Traditionally nationality of the offender is not considered in enforcing this principle.
But in modern criminal law we can not ignore the offender nationality Suddenly in
enforcing this Principle. For example in enforcing ''Territory competence'' principle
when an Iranian is convicted to Imprisonment Because of crime commitment in out of
Iran he should spend his imprisonment time in one of foreign prison ,accordingly the
others is not his compatriots , don’t speak with him in same language and have not
unity with him in culture and social mores and habits And his relatives can not visit
him in prison .Such Problems makes difficult prisoners connection with his
environment . As a result, punishment will be more difficult and unfair for him and
disrupts his social compatibility. In modern criminal law Convicts transportation is
considered As a form of international judicial assistance for removing such
shortcomings In this type of assistance a person who has been Judged and convicted In
the court of a country is transferred from this country to country that convicted person is
national of it and spend his conviction there. Of course against absolute title, Convicts
transportation is limited inImprisonment and does not include other penalties.
In addition to mutual agreements about convicts transportation, members of Council of
Europeapproveda Convention about international value of criminal sentences on May
28,1970 . Convention Convicts transportation has been foreside in limited case in Article
5 of this. But because of limitations of this type transportation, Comprehensive
Convention must be approved about this subject Finally Convention of Council of
Europe about convicts transportation was signed On March 21, 1983 in Strasbourg And
enforced from July 1, 1985. Then Sample Agreement of United Nations about convicts
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transportation wasapproved by general assembly of this organization during a statement
on December 13, 1985(Khaleghi,2004a:18).
In recent years Iran has signed mutual agreements with some countries by understanding
importance of judicial cooperation development with other countries. Most of these
countries accept considerable number of Iranians every year Because of a common
border with Iran or geographic proximity with Iran or tourist attractions .there is a few
agreements about convicts transportation .
Some conditions are considered for
Convicts transportation in this agreements from issuing country to executing country .
Some of these conditions are procedural and others are substantive .Studying convicts
transportation agreements shows some of these conditions are common in these
agreements. Usually this procedural conditions has been considered in agreements of
convicts transportation(Khaleghi,2004a:19).:
1- Action of Committed person must be crime in executing country .for achieving to this
condition , action of Committed person does not require to has same criminal title in
both countries. Only Action of Committed person must be a crime and punishable in
both countries. Therefore if Action of Committed person is barratry in one country and is
illegal possession in public property in another country , this condition can not be
achievable .
2- Condemnation sentence must be ultimate in issuing country .for enforcing a sentence
it should be ultimate .achieving to this condition is based on provision o issuing country.
3- A considerable amount of
Punishment term must has remained. Short-term
punishments are not compatible with aim of convicts transportation. Therefore convicts
transportation is accepted when considerable amount of Punishment term has remained
for avoiding of high costs infliction .usually this term is considered six months.
4- The convicted person must be a nationals of executing country . According to
explained reasons in justification of convicts transportation a country that convicted
person is one of its nationals is most favorable for punishment execution.
5-convicted person must accept his transportation .as regards convicts transportation is
for Interests of convicted person and facilitating in his reforming , convicted person
Decision is importance about transportation .When he is unable to express his agreement
One of his relatives can agree to convicted transportation .
For example this conditions is essential for transportation in Article 3 of convicts
transportation agreement Between Islamic Republic of Iran and Republic of Azerbaijan
and Article 67 of judicial cooperation agreement about civil, business, criminal, personal
status, offenders extradition , convicts transportation and heritage purification affairs
between Islamic Republic of Iran and Arabic Republic of Syrian .
About the procedural conditions of transportation that usually have been considered in
International agreements of Convicts transportation between Iran and other countries it
must be said only agreement existence does not force countries to accept transportation
and this matter needs to parties admission in any specific case. Also transfer request
can provide by both of parties and there is no limitation about providing transfer
request by one of parties(Khaleghi,2004a:22).. Usually in these agreements has been
provided following documents must be attachment of request .
1- convict s characteristics such as name, surname, father's name, place and date of birth.
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2-convict s nationality documents if those are available.
3- A copy of text of regulations that are
sentence documentation.
4-convict s transfer request or his legal agent or his relatives.
5-A copy of condemnation sentence and decision of Competent judicial reference about
its credit.
6- Confirmation of convicting country about measure of passed punishment and
remaining time of Punishment And any other subject about Forgiveness and Discount.
7- Any requested additional information by Recipient country that is essential for
transportation and sentence enforcement Such as medical report about convict s
physical and mental conditions .
Convicts transportation from issuing country to executing country has great expense
Specially when Convict is member of organized felonious or that countries have not
common borders. Therefore One of the procedural conditions that is considered In
agreements between Iran and other countries for Convicts transportation is transportation
expense . Usually executing country is responsible for paying transportation costs. For
example this Issue is considered in Article 12 of Convicts transportation Agreement
between Government of Islamic Republic of Iran and Government of Republic of Iraq
and Article 10 of convicts transportation and criminal sentences enforcement
cooperation Agreement between Islamic Republic of Iran and Kingdom of Thailand.
Reconsideration in sentence is another issue that is considered in
convicts
transportation agreements between Iran and other countries. Usually This authority is
only for issuing country and executing country has not this authority .Article 14of
Convicts transportation agreements between Islamic Republic of Iran and Islamic
Republic of Afghanistan Provides" issuing country can just reconsider about
Condemnation sentence of the person who is issue of transfer. Paragraph 2 of Article 14
of Convicts transportation agreement between Islamic Republic of Iran and Government
of India also refers to this issue.
Also in this agreements basically convicted person Forgiveness is in qualification of both
executing and issuing country . Each of parties can forgive the Convict who is issue of
transfer According to internal rules. Article 13 of Convicts transportation agreement
between Islamic Republic of Iran and Ukraine Provides about this issue " Parties of
agreement can forgive and reduce the convicted person s Punishment according to
internal rules.
2-2 Specified Punishment in international criminal court sentences enforcement
Occurring widespread war felony Occurrence , human rights Egregious violations and
Occurring crimes against humanity ,also perpetrators Immunity from Prosecution and
punishment because of domestic judicial system Defect and inefficacity induced
international community to establish International courts for prosecuting such crimes. For
this purpose International Criminal Court has been established after Rome Statute
approval . Rome Statute has been was approved in an international conference
Formed of Plenipotentiary agent of the countries that was held according to decision of
United Nations general assembly In 1998 with 120 Votes in favor , 7 veto and 21
abstentions.
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As regards international criminal law system has no facilities for enforcing Specified
Punishment in sentences of International Criminal Court and in international arena
"International detention center" has not been established yet After various procedural
steps and proscription International Criminal Court depends on state cooperation exactly
in enforcing own sentences. Therefore relationship between Rome Statute and foreign
criminal sentences enforcement is considered in this form that If one country accepts to
enforce sentences of International Criminal Court
in own sovereign territory it will
accept a Foreign criminal sentence enforcement in real. Thus it has entered new
Exceptions about Foreign criminal sentence non-enforcement in own Territory Because
International Criminal Court is a foreign court into that country .
Statute of International Criminal Court with predicting two types of punishment
''forfeitures " and " Imprisonment" has expressed provisions of relating to State
cooperation with International Criminal Court about punishment Implementation In
Chapter Ten. Article 109- Paragraph 1 of Statute Provides about forfeitures "States
Parties shall give effect to fines or forfeitures ordered by the court under Part 7, without
prejudice to rights of bona fide third parties, and in accordance with procedure of their
national law". Also according to Paragraph 2"If a State Party is unable to give effect to
an order for forfeiture, it shall take measures to recover the value of the proceeds,
property or assets ordered by the Court to be forfeited, without prejudice to the rights of
bona fide third parties". Therefore State Parties of Rome Statute not only must enforce
forfeitures sentences of International Criminal Court but must also maintain value of
Products ,estates and Properties that International Criminal Court ordered its forfeitures .
Also about imprisonment Punishment although there is no commitment into
governments for the enforcing imprisonment punishment that ordered by International
Criminal Court .But according to
Chapter 10 of Statute and Section 12 of ICC
Procedure Rules it can use.
Voluntary cooperation of Parties States. Therefore According to Article 103 - Paragraph
(a-1) of Statute :" A sentence of imprisonment shall be served in a State designated by
the court from a list of States which have indicated to the Court their willingness to
accept sentenced persons". Also According to paragraph 3 of same Article:" In
exercising its discretion to make a designation under paragraph 1 the court shall take into
account such views of sentenced person , nationality of the sentenced person,
circumstances of crime and application of widely accepted international treaty standards
governing treatment of prisoners; After selecting place of execution, President of the
Court enter into negotiations with that state. according to Article 103 - Paragraph (b-1):
"At the time of declaring its willingness to accept sentenced persons, a State may attach
conditions to its acceptance as agreed by the Court" . Agreements about form of
punishment implementation and its conditions including conditions of issuing country is
set in form of a Agreement. in order to ICC sentences enforcement with States
cooperation Article 133of ICC Procedure Rules provided Provisions Concerning
activities of a special unit with Title “Enforcement Unit” this unit After announcement
of voluntary willingness of statutes for ICC sentences enforcement evaluates and
Finally Selects issuing country then on basis of model agreement on enforcement of
ICC Sentence negotiates and provides agreements with issuing country. This Agreement
will be signed by president of the Court Based on Competency of President of the Court
for concluding ICC agreements.
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According to above explanation and taking into account fact that Islamic Republic of
Iran has signed Rome Statute on December 31, 2002 It can be concluded according to
Article 109- paragraph 1 of Rome Statute Iranian government is obliged to enforce
ICC sentences about forfeitures .Also under article 103 of
Rome Statute Iranian
government can declare Its readiness for enforcing the imprisonment punishment of
persons who ICC has been convicted by ICC and enforce imprisonment punishment
that ordered in ICC sentences after ICC selecting .Thus, as regards ICC sentences is a
foreign criminal sentence into Iran, Iran with adoption of Rome Statute Iran has
entered new exception about foreign criminal sentences non-enforcement principle.
3-Foreign criminal sentences recognition in Iran
In Iranian legal system In addition to exceptional cases of foreign criminal sentences
enforcement that was studied in past cases has been predicted that foreign criminal
sentences
are valid in sovereign territory of Iran In some other respects such
Observing prohibition of double punishment principle in determining punishment ,
considering time lapse in foreign criminal sentences enforcement , impact on persons
Criminal record ,subdominant punishment enforcement and determining damage of
crime without enforcing ability . In following we examine these items
1- The impact of foreign criminal sentences on observing the prohibition of double
punishment principle by Iran : One of the international concepts and criterion of human
rights protection in criminal proceedings is prohibition of double punishment principle
.This principle in common law legal system is called "Double Jeopardy" and at Civil
law legal system is called "Bis in Idem". It means that no one can be prosecuted ,tried and
punished for second time because of a crime commitment that has already been
prosecuted and there is a final Sentence about it whether it is conviction or Innocence ,
even his former conviction is under time lapse or forgiveness or Inapplicable because of
any other legal reason. accepting prohibition of double punishment that is a ultra- legal
principle and Justice requirement does not require to argument . Final proceedings for
once time about Charge of person and punishing him or his compurgation always and
everywhere eliminates possibility of retrial. According to writing of some researchers
this principle is obvious enough that the authorities and the institutions that are
supervisor of human rights and fundamental freedoms have not opportunity to explain it
and this principle has almost been accepted in all nations .
In terms of individual the citizenship judicial security requires persons who have been
tried for once and has been convicted under final sentence to know they will not be
retried for same subject . because anxiety due impeachment for New criminal
prosecution , need to prepare a defense against it forecloses His individual security In
legal aspect . Also in terms of social need to end conflict requires Judicial proceedings
be finished at one point and parties accept sentence that has been ordered at end of
proceedings and respect its Content . On the other hand respecting sentences of courts
and avoiding contradictory sentences issuing and avoiding public order disturbing
are other justifications for this principle(Khaleghi,2004b:415-416).
Documents of human rights have predicted this principle based on foregoing Foundations
and Criteria. For example According to Article 14- paragraph 7 of international covenant
on civil and political rights” No one shall be liable to be tried or punished again for an
offence for which he has already been finally convicted or acquitted in accordance with
law and penal procedure of each country ‘’. In range of regional human rights Paragraph
1 of Article 4 of Protocol No. 7 of European convention on human rights has been
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Provided same Subject . Of course in Europe other three conventions Including of
Schengen agreement (1990), Council of Europe convention (1970) and Brussels
convention (1987)have predicted this principle in same Article. Also
Article 8Paragraph 4 of American convention on human rights has just been Provided about
Innocence sentences “An accused person acquitted by a no appealable judgment shall not
be subjected to a new trial for same cause “.
In criminal laws of Iran before revolution Article 3 of general Penal Code(1304Amended in 1352) is considerable about this issue. According to paragraph (c) of this
Article “The Iranian or the foreign that have committed One of following offenses is
punished according to Iran regulation and when they were punished about same crime in
out of Iran court of Iran considers enforced punishment". Also Paragraph (e) of this
Article Provided about conditions of the Iranian prosecution and trial when they
Committed offenses in foreign country " He should not be tried and acquitted in location
of crime or under conviction , punishment should not be enforced into him completely or
Partially . After revolution explicit Article Was not observed about this subject until
domestic legislation Understood importance of this principle implementation gradually
and with regard to own limits about penalties that have rights of people situation and are
not convertible religiously accepted this principle implementation and credit of foreign
sentences in some crimes According to Article 5 of Islamic penal cod (1392). This
Article Provides" When proceedings this crime Lead to sentencing and its enforcing in
out of Iran courts of Iran considers enforced conviction in determining punishments" .
It should be noted this part of mentioned Article extent is limited by the crime that is
considered crimes in this Article or specific provisions and the Iranian or the foreigner
have committed out of Iran sovereignty territory and does not Include other
punishments.
Other noteworthy matter in this regard is relation between International courts sentences
recognition and prohibition of double punishment principle . This relationship plans In
two forms: Higher prohibition of double Prosecution and lower prohibition of double
Prosecution . According to lower prohibition of double Prosecution national courts must
recognize International courts sentences based on prohibition of double punishment
principle and if a International court deal with charge of a person an order suitable
sentence, national courts can not prosecute that person Again about same charge. Vice
versa Higher prohibition of double Prosecution means that if national courts order
sentence about charge of a person international court can prosecute that person again
about same charge. Relation between topic and lower prohibition of double Prosecution
principle is In this way : According to lower prohibition of double prosecution principle
, Article 20- paragraph 2of Rome Statute has been prohibited retrial of the Accused
person who has been convicted or acquitted in International court for one of the crimes
that has been inserted in Article 5 of Statute in other countries Including domestic courts
of countries. Therefore Iranian courts According to this principle and adoption of Rom
Statute must recognize sentences of International Criminal Court .
2-Criminal time lapse observance in foreign criminal sentences enforcement:
Criminal Time lapse is passed time that Prosecution or sentencing or punishment is
forbidden after it Legally . Before constitutional in criminal matters there was no
principle as time lapse .After constitutional with adapting Criminal Code of European
countries, time lapse entered in Iran criminal code. Time lapse had been considered in
Articles 51 and 52 of general penal cod (1304) and Articles 49 to 53 of general penal cod
(Amended in 1352) , Subparagraph4 of Article 8 of
criminal procedure code(
1318)(Madani,1999:183).
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After revolution Guardian Council announced time lapse is contrary Islamic law . On
06/01/61 they commented about Article 1041 of the Civil Code and legal Article about
time lapse in general penal cod such "Honorable judiciary supreme council referred to
letter number 1/26533 dated 18.09.1360 and following letter number 4059 dated
11.15.1360 about cancelling same Articles of General Penal Code cancellation, now
the other Articles of general penal code and Civil Code that have been discussed in
meeting of Guardian Council jurisconsult and have been approved in majority and has
been recognized opposed to Islamic law according to principle4 of constitution is
announced as follows : Articles 49, 50, 51, 52 and 53 of General Penal Code and Article
1041 of Civil Code(Mehr pour,1986:183).
With new changes finally legislator admitted time lapse about Preventive punishments in
Articles173 to 176 of Criminal Procedure Code(1378). But according to majority of
Guardian Council jurisconsu it announced that Time lapse is opposed to Islamic law and
requesting opinion former Commission of judicial supreme Council and legal department
of judiciary power commented provisions about time lapse provisions are obsolete the
courts of Islamic Republic of Iran did not pay attention to Time lapse and investigated to
all committed crimes without paying attention to time lapse. However new penal cod has
accepted time lapse in own fourth topic In detail again and has accepted time lapse in
discretionary punishment By eliminating preventive punishments .
legislator in Article 107 –paragraph2 of mentioned provisions with accepting time lapse
for foreign courts sentences enforcement about the Iranian nationals has recognized
foreign courts criminal sentences.paragraph2 Provides " Time lapse of foreign courts
sentences enforcement about Iranian nationals under regulations and legal agreements is
subject of provisions of this Article.
Therefore according to Article 107time lapse of foreign courts sentences enforcement
about Iranian nationals is As follows :
1- Discretionary punishment degree 1 to degree 3 after end of 20 years.
2-Discretionary punishment degree 4 after end of 15 years.
3-Discretionary punishment degree 5 after end of 10 years.
4-Discretionary punishment degree 6 after end of 7 years.
5- Discretionary punishment degree 7 and degree 8 after end of 5 years.
It seemsparagraph2 Face with problem in practice. As previously expressed foreign
courts criminal sentences don’t enforce in Sovereignty Territory of Iran except in
exceptional cases Therefore considered time lapse in Article 107 can not prevent foreign
courts criminal sentences enforcement. Also in exceptional cases such convicts
transportation according to its foundation is international agreements applying, time lapse
enforcement for criminal sentences non- enforcement and convicted person freedom may
lead to mistrust other side and disrupt judicial cooperation between two countries . On
the other hand Foreign courts don’t consider time lapse in Article 107 in own sentences
enforcement in own sovereignty territory. Also time lap enforcement in Extradition is
canceled according to nationals on-submission principle.
3-Influence of foreign criminal sentences on criminal conviction record and
subordinate punishment: Foreign criminal sentences are accredited and recognized in
some cases in respect of influence on criminal conviction records and subordinate
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punishment enforcement . About influence of foreign criminal sentences on criminal
conviction records it must be said in viewpoint of the Iranian legislator foreign
criminal sentences are effective on criminal conviction records of the Iranian or the
persons who had Iranian nationality or have no nationality but live in Iran in the other
words in viewpoint of Iranian legislator foreign criminal sentences are valid and
recognized in this respect . Paragraph under Article 2 of bylaw of judicial record
(Adopted 1.2.1384) provides about this issue : Foreign judicial sentences about
conviction of the Iranians or the persons who had Iranian nationality or have no
nationality but live in Iran write in their criminal conviction record while Issue of
conviction is a crime according to Provisions of Iran .
Also about influence of foreign criminal sentences on subordinate punishment
paragraph (a) of Iran Monetary and banking law (Adopted 18.4.1351) provides :
Convicted to theft, , bribery, embezzlement, breach of trust, fraud, forgery, issuing
returned checks, bankruptcy with fault or fraud are prohibited from banking tenure
whether sentences is ordered by internal or external courts and convicted person is
Principal offender or accessory.
4-Influence of foreign criminal sentences on determining damages of crimes
:According to some legal cooperation agreements between Iran and other countries
criminal courts of Iran recognize foreign criminal sentences in damages compensation
part .For example Article 3 of agreement between Islamic republic of Iran and
Turkmenistan on mutual legal assistance in criminal matters provides: “Judicial
authorities of parties will assist each other by doing investigation and procedure actions
and the other actions that is predicted In regulation of requested party including: ...
criminal sentences recognition and enforcement in damages compensation part ... ".Also
Article 18 -Paragraph 2of Agreement between Islamic republic of Iran and United Arab
Emirates on mutual legal assistance in criminal matters provides about this subject :“
Each of parties must assist other party in actions about crime revenue and Tools of
crime confiscation , crime victim property restoration and compensation payment to
them as far as national provisions allow it .” It is important that foreign criminal
sentences in damages compensation part in addition to
recognition ability have
enforcement ability .In the other words Iranian courts in addition to ordering damages
compensation sentence can enforce damages compensation part of foreign criminal
sentences.
Conditions of foreign courts
Iran
criminal sentences Recognition and enforcement in
Article 1295 of Civil Code provides conditions of foreign courts criminal sentences
recognition and enforcement in Iran .according to this Article " The courts of Iran
consider same credit for arranged documents in foreign countries that this documents
have according to previsions of arrangement Country Providing :
1- Validity of this documents must not
has been destroyed With a legal reason
2-Content of this documents must not be opposite to public order and pleasant behavior
Provisions.
3- The country that has arranged this documents must know authentic documents that is
arranged in Iran according to own provisions and agreement.
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4- Political or consular agent of Iran in the country that has arranged documents or
political or consular agent of mentioned Country must admit documents has been
arranged according to Provisions of arrangement place ".
As regard this Article refers to " arranged documents in foreign countries" and court
sentences are a formal document according to 1284 and 1287 of Civil Code, conditions
of Article 1295 must be considered for foreign courts criminal sentences recognition
and enforcement.
Legal validity of sentences: According to first paragraph of Article 1295 of Civil Code
one of the conditions of foreign criminal sentences enforcement and recognition is that
ordered sentences must have legal validity . A sentence is valid when it has been
ordered according to law that governs it and all conditions that is necessary for
documents arrangement according to provisions of arrangement place
has been
considered and it remains valid . If a sentence loses its validity because of a legal reason
it will lose own enforcement ability . The first and the most important condition that
most legal systems consider for validity of foreign sentences is competency of ordering
curt. Competency has two distinct meanings:” competency in international law” and “
competency in domestic law” which is divided into Inherent competency and local
competency. Purpose of competency in foreign criminal sentences enforcement and
recognition is international competency of issuing country generally. Iran and France
there is no comprehensive and systematic regulation about international competency of
courts and often In this case is used criterion of domestic rules. But in England there is
rather detailed regulations.
another condition of foreign criminal sentences legal validity is non-Obtaining sentences
by fraudulent instrument . Especially in American -English system that sentences is
recognizes and enforced rapidly controlling sentences in this respect
has more
important . Sometimes differences in legislation causes some people for reaching to
illegal aim use legal tools for escaping from provisions of their country and being in
domination of another country provisions that provide their interests in better way . For
example It is possible the offender for escaping from heavier punishment Leave own
country and go to another country and change their nationality and obtain nationality of
that country therefore in this way they cancel their extradition to place of crime
perpetration . As a result the country where the offender has fled there orders sentence
with mild punishment. This sentence is not valid for third country because this sentence
has been obtained with fraudulent instrument. The other cases that lead to foreign
criminal sentences discredit are non- definitive and time lapse. In these cases criterion of
judgment about sentences validity is provisions of issuing country no provisions of
executing country.
Public order and pleasant behavior observation : The another condition that has been
considered in Article 1295 of Civil Code for foreign criminal sentences recognition and
enforcement is that content of sentences must not be opposite to public order and
pleasant behavior .In law science "public order " is one of the terms that faces to subject
ambiguity despite its important role and application because of disagreement between
lawyers, lack of public order definition in provisions of many countries , proximity of
this concept with similar concepts such pleasant behavior, relativity of this concept
because of differences in politics, ethics, economy, culture of a community into other
community and
It is not possible presenting
a comprehensive definition
(Sadeghi,2005:91).
311
So that this issue is pointed in legal literature of the west in relation to public order “
public order definition and recognition
is neither possible nor favorable. It is not
possible because various examples of this concept and being unpredictable human
behavior prevent reasonable definition about public order .It is not favorable because it
limits power of the judge in its examples recognition. Always there are the people who
can act so that despite public order violation their behavior is outside of definition scope.
A number of provided definitions is expressed For illustrating this concept :
One of the French lawyers has defined Public order Such(Picard,2001:18-20)" set of
essential elements of each country that are respected and limit rights and freedoms of
people" . Objections of this definition is that phrase " Set of essential elements" is
ambiguous and dose not decrease concept of public order ambiguity , also in this
definition role and function of public order in law has been expressed stead expressing
its concept(Sadeghi,2005:91).
One of the Arab Lawyers knows public order according to examples, including
(Moslem,1994:230)" security ,freedom ,democracy and social or religion beliefs". His
definition is faced with two fundamental objection. First mentioned examples are not
public order in all societies second for this reason that concept of public order is
relative concept some of these cases may not be examples of public order In other time
periods as some of these cases were not examples of public order
already(Sadeghi,2005:91) .
Article 30 of German Civil Code also defines public order such: "The rules that is
related to foundations of social , political or economic system of a country "Also in
England provisions that are inconsistent with legislator policies, ethics principles and
public etiquette of that country are contrary to public order.
One of our lawyers defines public order as Collection of rights organizations and
principles for better managing of country and protecting safety and ethics protection that
It is not possible violation them( Jafari Langeroudi,1998:717) .
Concept of public order has different dimensions and application in field of international
law and national law .In aspect of national law according to opinion of some national
Lawyers ,public order is synonymous with Imperative principle that People can not
violate it in private contracts . In opinion of international lawyers concept of
international public order Includes those international principles and rules that are
foundation of international legal system and have a better position into other parts of
international law. In their opinion international imperative principle organizes central
core of international public order(Jaenik,1985:315) .
According to complexity of public order concept, Iranian legislator has preferred not to
offer definition about this term and to delegate to judges examples recognition
responsibility (Such as Article 957 of Iran Civil Code ). As a result judges play
important role in this regard and must determine examples of public order according to
thoughts of society and interests of country
and away personal
opinion(Sadeghi,2005:91) .
In order to better understanding of concept of public order we must examine current
theories about public order foundation . Two theories is provided about this issue :
Personal or internal theory and objective or external theory . Based on the objective or
external theory that has been taken from natural law doctrine, public order is same order
312
in society and result of natural communications between objects and members of society
that exist naturally and independently and regulations has just recognized it. according
to this opinion regulations are not creative of public order and are just its preserver
.Based on the personal or the internal theory that has been taken from individualism
doctrine there is no order in society independently and naturally and regulations are
creative of public order .So according to this theory credit of public order is not due
natural relations but is due regulations.
It seams each of above theories has expressed part of reality. On the one hand we can
not ignore the system in community that is due natural order. On the other hand order
due legal system is undeniable In every society. therefore social and Law have a
reciprocal relationship . So legal principle not only is creative of order but also support
order due nature of things or social relations.
Another important issue about concept of public order is relative nature of this
concept . Concept of "public order" formation is based on excellent interests of any
society . Excellent values and Interests of a society is different into other societies with
respect to social, political, cultural and religious necessities . On the other hand interests
of society change with passing of time(Haddadi,2010:160-161) . For example validity of
religion is different in variant societies therefore definition of public order in a strongly
religious society is different into secular society .
Also in practice many of the actions that are public order intruder in a country but
those are not public order intruder in other country . For example, polygamy is public
order intruder in France but it is not public order intruder in Iran or adultery has not
criminal description and is not public order intruder in many countries such as Greece
but such action is public order intruder in Iran strongly.
It is possible interference means between concept of public order and similar concepts
such as pleasant behavior because concept of public order has been explained
comprehensively .This interference has caused some authors of criminal law have
common understanding about these two concepts . But public order and pleasant
behavior have not a unitary concept despite common examples and distinction between
two concepts must not be ignored despite relationship between two concepts. Therefore
in continue after explanation concept of pleasant behavior we compare these two
concepts together .
Concept of pleasant behavior have expressed in three aspects of sociology,
philosophical and juridical . In aspects of sociology, pleasant behavior is habits and
traditions of a society. According to this opinion pleasant behavior is typical subject. in
Philosophical views, concept of pleasant behavior has been considered as idealistic
view and all people should consider Moral ideals for good life . According to this
opinion pleasant behavior is private subject. In aspects of juridical, pleasant behavior is
the moral principles that converted to legal norms and are foundation of provisions . For
this reason pleasant behavior has Guarantee.
about distinction between public order and pleasant behavior it must be said legal system
needs to pleasant behavior for establishing social justice .Parte of this moral principles
that has entered into texts of mandatory provisions or are foundation of this provisions
are public order but other parte of moral principles that public conscience is just its
guarantee are pleasant behavior. On the other hand foundation of public order is not just
313
moral principles sometimes economic, political, cultural, religious, requirements are
foundation of public order and this requirements are not in realm of moral principle.
Transactional: About this condition it must be said not only being treaty and legislation
is not enough for proving transactional but also ordered sentences in Iran should be
valid in applicant country in practice .On the other hand there may be treaty and
legislation in applicant country about foreign sentences recognition but in practice
ordered sentences in Iran may not be valid in courts of that country for reasons such as
political reasons . In this case there is not transactional and as a result it's not possible
recognizing ordered sentences of that country .Unlike above assumption is possible .
There may not be treaty and legislation in applicant country about foreign sentences
recognition but in practice ordered sentences in Iran may be valid in courts of that
country . In this case there is transactional and It's possible recognizing ordered
sentences of that country.
One of main about Transactional condition is that Foreign sentences recognition and
enforcement in each case depends on Whether is sentences of the Country that wants
to recognize and enforce sentence of another country valid in another country or not
? As a result, this issue is Affected from possible and impossible principle and is not
consonant with interests of people in international life. Another objections is that proving
Transactional Should be done through political investigation from ministry of foreign
Affairs or its subsidiary embassies .this issue Causes difficulty and slowness in foreign
sentences recognition and enforcement process(Tajmiri,2007:48).
Suggestions
In most countries legal system , foreign criminal sentences non-enforcement and
recognition is a accepted principle . Most important reason for justification foreign
criminal sentences non-enforcement and recognition is Protecting national sovereignty .
But with passing time and with
developing relations between countries foreign
sentences recognition and enforcement has been accepted in international treaties about
judicial cooperation and domestic law of country on a limited basis that its theoretical
foundations Is based on ''Res judicata Credit" Doctrine, judicial civility doctrine and
governments sovereignty.
In Iran by studying judicial cooperation treaties between Iran and other countries and
criminal laws of Iran It can be said Iran recognizes and enforces foreign criminal
sentences in particular cases .The cases that foreign criminal law is enforced in Iran
are Iranian prisoner transportation from issuing country to Iran for spending their
sentences in Iran and enforcing determinate punishments in International Criminal Court
sentences. Also about Foreign sentences recognition cases such as Article 5- Note 2,
Article 107 of Penal Code, Article 2 of bylaw of judicial record (Adopted 1.2.1387) and
paragraph (a) of Iran monetary and banking law (Adopted 18.4.1351)Are noteworthy.
About conditions of foreign sentences recognition and enforcement in sovereignty
territory of Iran it must be said determinate conditions in Article 1295 of Civil Code
Must be considered for Foreign sentences recognition and enforcement, because Under
article 1284 and 1287 of Civil Code Foreign criminal sentences are formal document
.These conditions are:
1- Validity of this sentences must not
has been destroyed With a legal reason.
314
2-Content of this sentences must not be opposite of public order and pleasant behavior
Provisions.
3- Country that has arranged this sentences must know authentic documents that is
arranged in Iran according to own provisions and agreement.
4- Political or consular agent of Iran in country that sentences has been arranged there or
political or consular agent of mentioned country must admit that sentences has been
arranged according to provisions of arrangement place .
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