نوع مقاله : مقاله پژوهشی
نویسنده
. دانشیار، دانشکده حقوق، دانشگاه شهید بهشتی، تهران، ایران a_niazpour@sbu.ac.ir
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Abstract
Crime is a phenomenon that has a long history in human life and has always been considered one of the most prominent public issues. Accordingly, a solution must be found in the public policy-making process. After all, public policy-making is a process within which actions and reactions related to public issues/challenges are identified in a targeted manner. The public policy-making process is based on a series of principles, of which the government's activism, the use of social institutions, and the knowledge-based nature of policies are of great importance. The principle of using social institutions is one of the most prominent of them. According to this principle, the government must, in addition to using the capacities and facilities of government institutions, also use the power of social institutions in the policy-making process. In the realm of Iranian criminal policy-making, several institutions, especially the Islamic Parliament of I.R.Iran, the judiciary, as well as the executive branch and the Expediency Council, have duties and powers in this regard. Nevertheless, in the criminal policy-making process, it is also necessary to pay attention to the principles of benefiting from social institutions and the knowledge-based nature of policies. The application of these principles by government criminal policy-makers provides the basis for using the capacity of several institutions, of which the Bar Associations are among the most prominent. In this institution, according to the aforementioned legal bill, law graduates, faculty members of law schools, judicial officers, and a number of other people with experience in the field of law can act. This policy, which is foreseen in Article 8 of the aforementioned bill, has given the Bar Associations a wide capacity to play a role in the criminal policy-making process. The interaction between bar associations and criminal policy makers in the field of crime prevention and criminal responses application manner is rooted in a number of fundamental rights. The formulation of a proper criminal policy is one of the most fundamental rights of individuals. Therefore, and in light of the aforementioned right, criminal policy makers must, through a systematic process, anticipate the most effective actions and responses to reduce the number of criminal behaviors. The procedural aspect of this right is reflected in the use of the capacities of government and social institutions, as well as the adoption of a knowledge-based approach. The aforementioned institution, which benefits from lawyers and uses their scientific capacities and expertise within the framework of several commissions such as the Codification and Law Commission or the Legal Affairs Commission, can in principle be effective in identifying public issues as well as the approaches of society and public opinion to the policies adopted. However, the existential aspect of this right concerns how to anticipate actions and responses to control the criminal phenomenon. In this context, criminal policy makers should use the capacity of social institutions to systematically examine crime and identify appropriate methods to reduce it. Among these, the Bar Associations are among the most important institutions that can play a role in understanding and analyzing public opinion regarding adopted and implemented criminal policies, as well as identifying appropriate methods to curb crime and, in fact, in anticipating preventive and counterproductive responses, by having skilled and thinker lawyers. In 1954, a significant legal event occurred through the approval of the bill on the independence of the Bar Association. In light of this, for the first time, the independence of this institution from the judiciary was recognized. Accordingly, the aforementioned associations, which previously had to follow the policies of the judiciary, have acquired a separate position and have found the opportunity to, on the one hand, regulate behaviors that undermine the values of the legal profession, and on the other hand, independently evaluate and make recommendations regarding adopted legal policies, including criminal policies. Accordingly, criminal policymakers should use this institution separately from other institutions related to crime in the process of adopting policies regarding actions and reactions that curb criminal phenomena. This approach, in addition to Article 1 of the aforementioned bill, has been taken into account in Article 69 of the executive regulations of the bill on the independence of the Bar Association, as amended in 2023. Accordingly, lawyers must take an oath to refrain from "...acting on political and personal ideologies, hatred, and revenge..." However, although a number of norms have been foreseen in the Iranian legal system for the participation of this institution in the criminal policy-making process, the use of the power of the aforementioned institution in this field faces numerous challenges. These include the lack of appropriate norms for the necessity of using the Bar Association, the lack of belief in the expertise-oriented power of the Bar Associations, the identification of a strategy for state-owned bar institutions, the lack of active participation of the Bar Associations in the criminal policy-making process, the lack of dynamic structures in the Bar Associations for criminal policy-making, and the lack of belief in government institutions to use the capacity of the Bar Associations. To properly utilize the participation and power of this institution in the criminal policy-making process, steps must be taken to formulate macro policies that will benefit from the capacity of the Bar Associations, anticipate the norms that must be followed for using the capacity of the Bar Associations in the criminal policy-making process, integrate the Bar Associations into criminal policy-making institutions, establish a criminal policy commission in the Bar Associations, convince government institutions to use the capacity of community institutions in criminal policy-making, and ensure the principle of independence of the Bar Associations.
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