Abstract:
The invention of a new type of penalty under the title of "Deterrent Punishments" in 1368 (1989) goes back to prolonged disputes that existed among relevant authorities in the first decade of the Islamic Republic regarding the approval of discretionary punishments in the form of legal articles. This is because the "judge's discretion" nature of Ta'zir and the lack of prediction of "statute of limitations" [lapse of time] in Imamiyyah jurisprudence were inconsistent with determining the types and amounts of Ta'zir in law and rendering it void with the passage of time. The creation of this new title and its placement alongside the title of "Ta'zir" has been a way for the legislator to overcome this "jurisprudential" obstacle (?). In this brief research, we have concluded that the emergence of the title "Deterrent Punishments" alongside "Ta'zir" has no religious or jurisprudential basis and cannot be based on the use of this expression in the response of the Founder of the Revolution - may God have mercy on him - to a question posed to him. Apart from the lack of legitimacy, "Deterrent Punishments" suffer from an identity crisis and in practice (judiciary) are not distinguishable from Ta'zir and have caused many ambiguities and contradictions. This unfounded "innovation" has extensively damaged the wisdom of criminal legislation in the Iranian penal system. And the result of the discussion is that the removal of the title "Deterrent Punishments" as a division for "Ta'zir" and one of the types of punishment, with the characteristic that it is subject to the statute of limitations, is an urgent necessity.
Machine summary:
Now, a brief reference to the events leading to the use of the term “Deterrent Punishments” by the late Leader of the Islamic Revolution and, subsequently, in criminal laws: 1 The date 1631/5/03 marks the beginning of discussions between judicial and legislative authorities, on the one hand, and the Guardian Council of the Constitution, on the other; the day the Council announced its opinion on the draft of Hudud and Qisas (retaliation) and its regulations.
This means that the title “Ta'zir” encompasses all punishments that have not been determined and specified in Islamic criminal law, including punishments that the Islamic government prescribes for violations of governmental decrees related to order and public interests.
any punishment that the legislator – the government in the general sense of the word – determines for maintaining order and social interests with the mention of its type and its amount is determined in the law, without that punishment being mentioned in jurisprudence or Sharia, is a deterrent punishment and, like many of the punishments stipulated in the Islamic Penal Code approved in 1979, is subject to the provisions of the statute of limitations; however, deterrent punishment does not include شرعی تعزیر (religious discretionary punishments)” [Opinion No. 7/9325 dated 1988/07/22 of the General Office of Legal Affairs of the Judicial Power.
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