Prohibition of Double Punishment: Views, Foundations, and Arguments of Proponents and Opponents along with a Comparative Study of the Jurisprudential Views of Authorities in Islamic Jurisprudence

Tavajjohi, Abdolali; Ghorbani, Mehdi

doi:10.30497/law.2012.1260

Prohibition of Double Punishment: Views, Foundations, and Arguments of Proponents and Opponents along with a Comparative Study of the Jurisprudential Views of Authorities in Islamic Jurisprudence

Type : Research Article

Authors

10.30497/law.2012.1260

Abstract

The rule of the prohibition of double trial and punishment is recognized today as one of the foundations of a fair trial. The international concept of this rule is, in brief, the prevention of prosecution, trial, and punishment of a defendant in the courts of different countries for the perpetration of a single criminal conduct, or, in the view of some scholars, for the commission of a single criminal title. Before the Islamic Revolution, the legislator of Iran, while amending the former Penal Code and according to Clause 5 of Article 3 of the above-mentioned Act amended in 1352, validated the negative effect of decisions issued in foreign courts by accepting the prohibition of double punishment for convicted individuals. He had also recognized the validity of res judicata originating from decisions regarding offences committed outside Iranian territory under certain conditions. However, after the Islamic Revolution, there was a tendency to refuse acceptance of this rule. Thus, the legislator, in ratifying the Islamic Penal Code in 1361 and 1370, amended Clause 5, Article 3 of the above-mentioned law, thereby invalidating the conditions that followed it. Taking a cursory glance at the concept and foundations of the rule, the present article presents the views of proponents and opponents as well as the jurisprudential opinions of authorities in Islamic jurisprudence. Finally, it approves and justifies the rule in certain crimes and punishments from a jurisprudential perspective.

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