Investigating the status of compensation for unlawful imprisonment In Iranian and French criminal law

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1 Available online at Scinzer Journal of Accounting and Management, Vol 3, Issue 4, (2017): DOI: /SJAM ISSN Investigating the status of compensation for unlawful imprisonment In Iranian and French criminal law Morteza Mahmoodi Ketler Master of Science in Criminal Law and Psychology - Payam Noor University of Mashhad-Iran Corresponding Author morteza.mahmodi173@gmail.com Abstract: In the Basic Law and the Criminal Procedure Code, there are some ways of restoring the integrity of the innocent prisoners, as well as the important role they play in restoring the integrity of the innocent prisoner, has a significant impact on the reduction of the baseless allegations against individuals and groups. It is possible for those who decide to file a complaint to examine all aspects well and if they do not have complete certainty about the issue or lack of sufficient documents to prove that the crime was committed by the accused, They do not charge the plot, in other words, these strategies cause people to spend suspicion. There is no coherent and straightforward legal remedy in the Iranian law, and only the general provisions of the Islamic Penal Code and civil liability law can be used to secure the rights of innocent prisoners. But French criminal law in this regard is more In accordance with article 626 of the French Code of Criminal Procedure, if a convicted person is subsequently found guilty of a restoration of innocent protest in accordance with the provisions of the restoration of the right to a fair hearing, he has the right to demand the full compensation for the material and immaterial damage brought to him by the defendant in accordance with The provisions of this article are set forth in the article 156 below. So, from the findings of this study, we are seeing a legal vacuum on the attention of innocent prisoners who have lost some years of their lives due to the mistake or misery of others by Iran's criminal law. It also shows the anticipation of compensation for illegal imprisonment Is required in Iranian criminal law. This research has been conducted in a library method with the aim of identifying domestic law deficiencies and providing the necessary solutions in this regard. Keywords: unlawful imprisonment, compensation, accused, innocent Introduction The religion of Islam as the most complete and last divine religion, despite the multiplicity of the three doctrines of conscience, ethics and practice, has unity and unity. There is such a strong link between the three teachings of religion that complement each other, in such a way that a single religion is abstracted from it. Practical teachings on ethical and doctrinal doctrines are also based on the fact that by exploring the wisdom, it is possible to discover the foundations of many practical teachings in the religious and ethical concepts of religion. And, as a matter of fact, true Islamic scholars are not well aware of the basic concepts of discovery of various social, economic, legal and general systems, even minor provisions and subordinate judgments of Islam. Therefore, a glance at the religious and moral concepts of religion and spiritual capital is not only inevitable, but also for the accurate and comprehensive consideration of Islam in relation to the effects and responsibilities of the damage caused by spiritual harm. In Islamic jurisprudence, many non-financial values and personal rights of individuals, including their honor and dignity, have been given to many, and the violation of these rights has been forbidden and has caused the worldly and the future to be punished. The ruler can restrict the rights of the violator, even in some cases by violating the rights of individuals. Nonetheless, the legitimacy of compensation for the moral harm from the financial point of view of jurisprudence is the place of discussion and disagreement, and some consider it to be contrary to religious law. (Amid Zanjani, Abbasali, 1382, p. 252). -The reasons for the compensation of spiritual harm in general and some about its compensation through financial in Islamic law 1. The rule of law, which is documented in the wisdom, verses, and narrations, especially the traditions of Semara al- Jandab, is related to spiritual damage and the Prophet (pbuh) has compensated for the order of the tree and the judgment. 2. The rule of neglect of the Hardship, which is also documented in verses and narratives: the non-acceptance of spiritual compensation may be caused by an intense, severe and unbearable hardship. 3. The rule of wasting, according to some jurisprudents, is that the rule is not guaranteed to be deductible, but also includes non-financial rights and values. (Safaee, Seyed Hossein and Rahimi, Habibollah, the same, p. 131) 4. Some Sunni writers have interpreted "literary damages" and some examples of jurisprudence that go back to compensating for the spiritual damages. (Aghaabai Bani, Ismail, the same, p. 163)

2 In the Iranian law, spiritual compensation has been accepted, including Article 171 of the Constitution, which relates to the responsibility of judges, Article 58 of the former Islamic Penal Code of 1370, which repeats the term of the constitution, as well as in Articles 10, 9, 8, and 2 and 1 of the Civil Liability Law, also compensation for losses It is anticipated that the special clause of article 1 of this law has given rise to harm to non-financial rights such as: life or health or freedom or dignity or trade reputation or any other legal right, and provides for compensation for the moral hazard, and in this Compensation through financial and other means, including apologies and insertion of a judgment in your prospect Ten. Article 14 of the Code of Criminal Procedure, passed in 2013, explicitly provides for compensation for the loss of life and has ended the disputes, which is a step forward in protecting the rights of the innocent prisoners, since the detainee is sentenced to death in addition to the loss Granting freedom, which is considered to be the spiritual right of man, remains a bad person in society, which is absolutely necessary to make up for it. Therefore, in this research, we have tried to examine the status of compensation for damage caused by illegal illicit trafficking in Iran and France in the criminal law, and the consequences of the actions necessary for the operation. Importance and necessity of research: Given that Iran's criminal law does not have a clear and uniform legal basis for the compensation for unlawful imprisonment, there is no coherent approach in this regard, and the existence of a vacuum in domestic law is inapplicable with the rights of another country to suggest that it be complemented by the necessity of this The research was required. Research purposes Due to this, there are some gaps in compensation for illegal detention in Iran's law. The main objective of the study is to identify these gaps in domestic law and to adapt it to French law, which is to provide a comprehensive and practical proposal to address these objections.. Examining the Principles of Iran's Criminal Policy in Illegal Imprisonment and its Compliance with French Criminal Law Examining the Principles and Principles of Compensation for Illegal Imprisonment in Iranian-French Laws Research MethodologySince this research has tried to use the legal and legal resources of Iran and France, the research method of the library type is documentary. Words Definitions Unlawful imprisonment Imprisonment in the meaning of the term, the deprivation of liberty and self-control over a fixed or unlimited period, in which there is no clearance, and if there is a waiting state, it is seized, not imprisonment (Jafari Langroudi, Mohammad Jafar, 1994, P. 208)The word hijab means to imprison, detain, imprison. (Definition dictionary). Compensation The term loss or damage in the word means damage, loss and loss of property or right, also means anti-suffering, loss, damage, loss. The owner of the ghamas and Isfahani has been damaged and means "malaise". Whether or not selfrighteousness is due to a lack of knowledge and bounty, or a malaise of the body due to the lack of a member of the members or because of the wealth and dignity. (Taghizadeh, Ebrahim and Hashemi, Sayyid Ahmad Ali, ibid., P. 66). In this case, Material and non-material damage is divided. Compensation for illegal imprisonment The rule of credit is closed and compensation is granted In principle, a ruling issued at the end of proceedings for a charge by the competent judicial authority, and the normal way of protesting or abandoning it, is considered correct and its provisions, whether convicted or acquitted, are considered valid in that regard. To make From this point of view, a rule has been formed, called the "Code of Conduct", which prevents prosecution and prosecution of the same defendant. (Khaleghi, Ali, ibid., P. 136) For this reason, the definitive rulings of the courts in criminal cases are consistently based on the rule of the closed case, but this assumption does not always mean that the criminal justice system actually only condemns the true culprits. Humanitarian law, no Sometimes it's not immune to error. The reinstatement bodies or similar institutions in many legal systems allow them to be released from punishment under certain circumstances, as the innocent convicted of a judicial mistake, since Selim's conscience never accepts that despite New evidence or facts that have been discovered or definitively convicted of a definitive conviction, which clearly proves the innocent convict, by insisting on the implementation of a deceptive decision based on mistake, the freedom and even the right to life of an innocent person Exit (Agriculture, Abbas, 2007, p. 105) Therefore, if a person has been imprisoned for many years, but later it has been determined that due to a mistake made by a judge, or intentionally, a judge or false testimony, or a false disclosure by the plaintiff or plaintiff of the plaintiff, resulted in a wrong decision, the damage sustained during his or her imprisonment Material damage, moral damage and physical damage to him must be compensated. 72

3 But some people oppose the payment of damages to innocent prisoners and they believe that in order to determine the damage, both material and spiritual, the justice system has to reconsider the reasons, in other words, to re-examine the case, but this review is based on the rule of law, criminal offenses Because the rule requires that it refrain from reviewing a case that led to the issuance of a decree. (Sharifinia, Mohammad Hassan and Fili, Hassan, the same, p. 82) In spite of the above objection, it does not seem that there is a conflict between compensation and the rule of law in the area of criminal justice, because on the one hand, and in relation to the provisions of the prohibition of prosecution, this rule can not be applied, but in relation to the definitive rulings Objection from the courts. In the second hearing, which is carried out in order to estimate the amount of damages, the defendant's trial is not considered to be an absolute consideration; on the contrary, by paying the material and moral damages to the defendant who has been acquitted by the court, in fact, the effects And we carry out the results of the verdict of adultery, in other words, as the immediate release of the accused and his imprisonment In the press, they are considered to be the offender, and compensation from innocent defendants will also be one of the effects of the verdict of innocence and even its most important effect. (Assyria, Mohammad, same, p. 3). The principle of innocence and damages:the principle of innocence in jurisprudence means that in cases where we are doubtful, we believe that we are not obliged to do so. (Mohammadi, Abolhassan, 2010, p. 299) Article 4 of the Code of Criminal Procedure, approved in 2012, states: "The principle is indissoluble..."the concept of this principle, which does not have much to do with the jurisprudential concept, is that the person has not committed a criminal offense on the charge, and the opposite must be proved, therefore, the principle of exclusion is from the principles of jurisprudence and accepted in international law, which is to look at Innocence and worthwhile of man. One of the complaints that can be made to pay damages to innocent defendants is that, if we accept the compensation, there may be doubts as to the value of the verdict issued in favor of the innocent defendant. Because on the one hand, some of those who have been acquitted may not claim compensation, and on the other hand, it is possible that, despite their request, the court hearing refuses to grant damages to some of them for some reason, in which case the judgment of innocence will be effective and Your value will not remain. This view is not acceptable. In fact, the defendant's acquittal is apparently in two ways: first, during the preliminary investigation or at the end of the investigation, the prosecution is issued by the investigator or the judge's office; secondly, when the defendant acquires the conviction in the court but In either case, the decision of the interrogator or judges of the courts is not always the product of their absolute certainty of innocence; in some cases, the sentence of indemnity undoubtedly represents the innocence of the person who has been in prison for months or years, but there are others. The defendant was charged with lack of sufficient reason, the complexity of the matter, the mysterious aspect of the charge, the jury's weakness in the countries where he The aforementioned persons participate in criminal proceedings, and... are acquitted, in such cases, judges of the investigation and courts, according to another rule, which is itself the works of the principle of innocence, and that "doubt must always be in the interests of the accused To be interpreted "to avoid prosecuting and condemning the accused without really being guilty of innocence. Do you have to look at the eye of the two groups of defendants who have been prosecuted or sentenced to death? The answer to such a question is to a negative description. The accused who is truly innocent and the accused who derives the rule of doubts is considered to be the same in the same direction, which means that it is not possible to punish any of them, and if they are arrested immediately Should be released. Therefore, when we execute a charge against a person who has been acquitted, we have treated the offense, but in what is related to the payment of damages, it can not be claimed that it was not possible to damage some of them (because they did not claim damages) Or the court did not deserve to know them) would cause the violation of the principle of innocence to come to fruition. Respect for the principle of innocence requires that the accused, whether it be innocent or innocent of the judiciary, should not be punished, but that his community does not know the same for all those who hold the court verdict, so all those who are acquitted deserve Damage to the principle is not damaged by the recognition of their ineligibility. (Assyria, Muhammad, the same, pp. 5, 4, and 3, and Sharif Nia, Mohammad Hassan and Fili, Hassan, the same, pp. 84 and 83). Restoration of criminal proceedings in Iran After the certainty of the verdict, the provisions are assumed to be correct and valid for it, which prevents the matter from being re-examined, resulting in a rule that is based on the principle of the validity of the case that was previously investigated.. However, the rule that emerges in this way is assumed to be the end of the judicial review of the differences between the parties, and there may be clear reasons for the erroneousness of the sentence due to a judicial mistake. However, in order to eliminate judicial errors and prevent the prosecution of innocent accused from the past, it is accepted that, after the certainty of the sentence, in certain exceptional cases, which are also referred to as extraordinary cases of protest against sentences, the sentence He appealed and re-examined the case (Hedayati, Mohammad Ali, 1942, pp ). The protest against the verdict, after its certainty, may be made by requesting a retrial. In other words, at the present time, and in the wake of the adoption of various laws and the examination of various means of protesting sentences, a specific way to re-examine the case It is issued and definitive, and it is "restoration of proceedings". At the 73

4 same time, it is possible to follow this path and restore the trial to the case in two ways, one through the approval of the Supreme Court and the other through the approval of the head of the judiciary. (Khaleqi, Ali, the same, p. 103). 1. Public prosecution through the Supreme Court The main reference point for supervising the proper enforcement of laws in the courts is the Supreme Court. Therefore, since this form of protests against the verdict of the past has been a means of requesting this reference to agree to a re-examination of the case and retained in the Code of Criminal Procedure. The most important feature of the restoration of the proceedings is that the enforcement of the sentence does not prevent the ruling from protesting it and request the reinstatement of the trial. Therefore, if the sentence is imprisoned and after a prolonged period of imprisonment, he or she objects to his conditions, he / she will be tried on request for a restoration of the proceedings and, on proving his innocence, will continue to be held in custody as well as extrajudicial and extrajudicial sentences And, by eliminating the conviction, recover its lost dignity in society and, if possible, demand for damages arising from the implementation of the punishment. (Khaleghi, Ali, the same, p. 104). Article 474 of the Criminal Procedure Code of 2012 provides: "The request for reinstatement of the court's definitive conviction, whether or not the judgment is enforced, shall be admissible for: (A) Someone will be charged with murder and then be alive. B) How many people are convicted of a criminal offense and commit the crime in a way that can not be committed by more than one perpetrator. (C) A person is convicted of a criminal offense and another person has been convicted by a court of law for attributing the same offense, so that one of them is found guilty of conflict and conflict with the provisions of the two judgments. D) Different sentences are imposed on a person charged with incrimination. E) It is proved in the competent court that the false documents or the mistreatment of the guilty party were the basis of the verdict. (C) After a final verdict is issued, a new incident or appearance or new evidence is presented that proves the innocence of the person convicted or not guilty. (G) The offense is not a criminal offense, or the sentence is higher than the statutory penalty. Therefore, if any of the paragraphs mentioned in Article 474 of the Criminal Procedure Code of Conduct are heard, they will have the right to seek redress. Of course, in addition to the convict, in accordance with article 475 of the said law, a lawyer convicted or his legal representative and, in the case of the death or abstention of the convicted person, his wife, legal heir and his decision, as well as the Attorney General of the country and the prosecutor general, have the right to seek redress. 2. Special hearing through the head of the judiciary In reinstatement of a particular hearing, a person will hear from the head of the judiciary at the request for restitution. The legislator's goal is that, along with the traditional way of protesting the definitive rulings, that is through the restoration of the proceedings, which is narrow and clear, another way to protest against any anti-religious order, even after its certainty, is to open up to special judicial authorities. (Khaleghi, Ali, the same, p. 113). Article 477 of the Criminal Procedure Code of 2012 states: "If the head of the judiciary finds a definitive vote against any of the judicial authorities as unlawful, he shall submit the case to the Supreme Court with prescription order, in order to be allocated in a special section approved by the head of the judiciary. A definitive ruling and a definite vote. Certain branches of this kind, founded contrary to the Shari'a between the announced, violate the definitive ruling and re-examine it, formally and substantially, and expire. " The solution envisaged in Article 477 of the Criminal Procedure Code is commendable because it has opened the way for the reopening of the trial, and it is a step towards paying attention to convictions that have been mistakenly judged and enforced against them unfairly., Although the referral method to the Supreme Court is not empty. (Golvist Jouibari, Rajab, 2014, pp ) 3- Constitution of the Islamic Republic of Iran and Compensation Article 117 of the Constitution of the Islamic Republic of Iran stipulates: "If, by virtue of a fault or a mistake, the judge, in the matter or in the judgment or in compliance with the ruling on the particular case, has a material or moral disadvantage to anyone, the guilty, if guilty, is guarantor of the Islamic standards and otherwise the damage by the state It is compensated and, in any case, rehabilitated from the accused. " One of the most advanced but at the same time abandoned the constitution, which has not been approved by the Islamic Consultative Assembly since its adoption, and it has not been foreseen in Article 171 of the Constitution for the provision of such damages, According to which the responsibility of the judge or the state to compensate for the material and intangible damage of individuals in the event of the fault or mistake of the judge in the matter or in the judgment or in the application of a particular case. (Khaleghi, Ali, ibid, p. 104) From this progressive principle, there are two different interpretations: The first impression is that the defendant who has sustained legal misconduct must first prove that the loss was not due to The judge's fault, so that he can claim his own damages from the government. However, according to the second conviction, the judge's lack of guilt does not require proof, and the state, as a defendant, must prove the judge's fault, otherwise he will be sentenced to compensation for the material and moral damage to the judge. The second impression seems to be more consistent with the legal logic of non-compliance, since it is compulsory for the survivor to 74

5 prove the existence of a non-existent, very burdensome assignment and even an obligation to us, while the government can, by proving the fault of the judges, Claiming damages from the culprit. From the legal point of view, there are also strong reasons for the correctness of this notion. In the regimes that have been introduced by the Imams (AS), it is explicitly emphasized that the damages that judges would incur due to an error in their judgment in executing the penalties. (Ibn Gregorian, Sheikh Mohammed, 1996, p. 111). According to the fatwa of the jurists, the general principle of compensation for the damages caused by the judge's incorrect judgments is to follow the appearance of the narrations and refer to Beit Elmal. (Najafi, Sheikh Mohammad Hassan, 2011, p. 249). Therefore, it seems as if the fault of the judge has not been established, it should seem to be necessary to apply this general rule, which is the case of the jurisprudents. Also, since the right to lodge a claim for damages as a litigant is a judicial mistake, the government can not force him to initiate a lawsuit against the judge himself, in order to be able to refer to the state only in the event of a failure and failure to prove the fault of the judge. Slowly 4. The provisions of the ordinary laws on compensation Article 163 of the Islamic Penal Code, adopted in July 2012, provides general and general compensation for damage caused by an illegal sentence. This article stipulates: "If, after the execution of the sentence, the proof of the crime is void, such as that it is established in the court that the offender was someone else or that the crime has not occurred and the defendant has suffered physical, psychological or financial damage due to the execution of the sentence., Those who are the object of the damage or damage are documented to them, whether they are the perpetrators of the oath, the plaintiff, the witness, as the case may be, with retaliation or payment of the dishonest or statutory stipulations in the law and compensation for financial damages "Given the fact that the head of the article reads: If after the execution of the sentence. it is therefore not the case that the content of the sentence is imprisonment or the retribution of the person or the retribution of the soul or the execution of the sentence on the convict, so if a person is sentenced to imprisonment in accordance with the court's order, and then the proof of proof The crime shall be void, such as in the court that it is determined that the offender is someone else, or any other person convicted, to claim compensation for damage in accordance with this article. A remarkable point in this article is that those who have been documented do not appear to have been systematically referred to in the article, therefore, if the perpetrator of the oath has caused the plaintiff to be unjustly charged or the witnesses have falsely testified. Will be responsible for compensation. In approving this view, Article 534 of the Islamic Penal Code provides for the imposition of sanctions imposed in 1375: "Each employee of government departments and judicial authorities and public service agents who commit writing and writing of their duties shall be liable to deceit, whether the subject matter or subject matter is altered, or written and spelled by an official, stamp or Excerpts distort one of the parties or invalidate an invalid or invalidated right or something that has not been confessed, in addition to administrative penalties and compensation for imprisonment from six months to two years, or from three to twelve million Rial will be sentenced to a fine " Therefore, if, by virtue of the abovementioned acts, state authorities, including judicial authorities, staff members and agents are subjected to public service charges and later determined to be innocent and, for example, have not confessed, but did not admit it. Confessed that the damages caused to him must be compensated for at the end of the article in addition to administrative penalties and compensation for damages... The convicted person may not suffer due to a judge's mistake or false testimony, but as a result of the expert's misconduct of the wrongful sentence, against him, in this case Article 167 of the Criminal Procedure Code of 1392 granted him the right to claim compensation. Of course, despite Article 163 of the Islamic Penal Code, even if there were no baccalaureate or illegal actions of government employees and judicial authorities and public servants, there was no problem in this regard. In addition to the case mentioned in the Islamic Penal Code, with the help of the general civil liability rules, there is the possibility of compensation for the damage caused by illegal imprisonment. Article 1 of the Civil Liability Law stipulates: "Anyone who has deliberately or, as a result of negligence, suffered harm to life or health or property or liberty or dignity or commercial reputation or to any other right created by law to persons causing material and moral harm, Compensation for the damage is caused by your actions. " One of the issues mentioned in the article is harming another's freedom. A person who, by virtue of another practice, has spent his or her best years in prison and is deprived of the great privilege of liberty, must have the right to compensation for the loss suffered, this provision provides for compensation for the loss of freedom and unlawful imprisonment. And the head of the matter is using the word of every one...include the expert and other people like plaintiff, intuition and The responsibility of judges in Iranian law The Judge's Commitment One of the disputed professional and professional faults is the judge's fault. In this regard, in relation to the judge's obligation, it is also necessary to state that his obligation is due by the law (Safa'i and Rahimi, ibid., P. 166) In accordance with Article 171 of the Constitution of the Islamic Republic of Iran, "Whenever the judge decides on the 75

6 matter or in the judgment or in the implementation of a judgment regarding a particular case, the material or moral harm is to one's end, the guilty, in the case of fault, is guarantor of the Islamic standards. Otherwise, the damage will be compensated by the government. " According to this principle, if the judges are found guilty of the laws, the guarantor and the claimant will be compensated. Under Article 11 of the Civil Liability Act: "Employees of the state and municipalities and their affiliated institutions are liable to the detriment person for the purpose of performing their duty or as a result of accidental damage to the person. However, if the damage is not attributable to the acts of the doctors and is related to the defect of the facilities of the departments and institutions, then the compensation is the responsibility of the relevant agencies and institutions, but in the case of the exercise of the sovereignty of the state, if the actions taken in accordance with the necessity to provide social benefits according to law The state will not be obliged to pay. "The provisions of this article are governed by the sovereignty of the state, which means the total of duties and powers that are provided by laws and regulations, in order to prevent the collapse of public order The community is given to some administrative and executive officials. Public safety, public health, public health and good morals are among the elements of public order (Tabataba'i Motamani, Manouchehr, 2011, p. 153). The government plays a leading role in the exercise of sovereignty and acts on behalf of the public and in the exercise of national sovereignty, so it will not be compelled to pay damages if damages occur. However, this part has been criticized by some lawyers. To these people, the government believes in doing business that others can do, such as business and banking, which in this case the government is responsible for the losses caused by the business. (Ghasemzadeh, Morteza, 2005, pp. 24 ). Therefore, if the damages caused by the state-owned civil servants are not attributable to the defects of the facilities of the departments and agencies, they themselves are responsible, and this is not contrary to the law, but if the damage caused by documented state employees does not apply to them. And it is related to the defect of the facilities of the departments and institutions, in which case the compensation will be borne by the relevant department or institute. (Taghizadeh and Hashemi, same, p. 137) Being guilty of the wrongful act or fault of the judge Article 30 of the Law on the Supervision of the Judiciary Act, adopted on 17/7/2011, provides for two distinct stages for the compensation of damages caused by a judicial misdemeanor: the High Court's review of the judges' judgments is based on the principle of the judge's wrongness or fault (stage one) and the Tehran General Court Claims for damages (second stage). The article stipulates that "consideration of a claim for damages arising out of a judge's mistake or fault is the subject of the 100th principle of the first constitution of the Islamic Republic of Iran in the jurisdiction of the Tehran General Court. The prosecution in the court in the general court is based on the fault or mistake of the judge in court. Great". Not only has the applicant been guilty of misrepresentation, but his mistake has also been considered by the Immigration Court of the judiciary. Therefore, if it becomes apparent from the restoration of the proceedings that the convicted person, while in fact innocent, has been punished in an unjustifiable manner, apparently for the sake of being sentenced to death (only for the violation of the previous conviction), can not be sufficient for the judge to make a mistake, but condemned The offender must first go to the judge's court to prove the fault or the mistake of the judge. In addition, advisory opinions No / 7-8 / 11/84 and 7629 / 7-26 / 10/84 indicate that according to the Judiciary's legal department, even before the adoption of the article, the law enforcement court should be specified The judge's replies were accompanied by his fault (which is in this case personally guarantor) or not at fault level, and the damage should be compensated by the claimant. (Iranian Encyclopedia, Babak, 2008, pp. 157 and 156). Also, some lawyers prior to the adoption of the law on the supervision of the behavior of judges, adopted in 2011, referred to the judiciary, inevitably considered judges to be judge's fault. Even this is a natural and obvious point. (Ghasemzadeh, Seyyed Morteza, 1999, p. 293 Hashemi, Seyyed Mohammad, 2010, p. 403 and 402). Civil liability in French law Civil liability developments The responsibility for the past century was completely criminal or even largely religious. Penalties, such as sacrifice and punishment, did not pay any attention to compensation. The only purpose of these punishments was to punish someone who was harmed from his area to the community or to the god who was the symbol of society.in this period, the individual was of little value, so the idea of civil responsibility could not grow. After a while, with the passing of private revenge, the first signs of civil responsibility were revealed. When central power became so powerful that it was able to overcome the tribal chieftains and rulers, there were general crimes that were punishable by public and non-religious acts, first by crimes. Private penalties competed and then replaced them. The other victim alone does not punish the offender, but this task is left exclusively to the government. With this public accountability, private penalties are imposed, and criminal responsibility and civil liability replace mixed responsibility. When a sole criminal, public, and non-religious liability arises, the concept of a person's loss goes away from social harm and the scope A new kind of civil responsibility is opened up so that it can become independent. 76

7 It took a long time to establish a general civil liability principle. Roman law did not have this principle. At the same time, it appears that the Romans had found that the damage should be compensated without regard to any punishment. There was no such thing in old French law. Duma, the great jurist of the seventeenth century, for the first time in general terms, established the principle of civil responsibility, inspired by the writers of the 1804 French Civil Code for the codification of material 1382 and 1383 of the Civil Code. (Jordin, Patrice, 2003, pp. 25 and 24) From the second half of the nineteenth century, the civil liberties movement was under the influence of a doctrine of law being under way, and its effects continued throughout the twentieth century, but what affected the transformation of responsibility was the "objectification" and "collectiveization" of responsibility, These two factors led to a transformation of the change of ownership that was previously personal. Compensation for illegal detention in French criminal law French Compensation The French Compensation Convention is a party to the International Covenant on Civil and Political Rights and Protocol No. 7 to the European Convention on Human Rights. The country has no right to a condition for the compensation of innocent convictions in respect of the provisions of this international instrument. Has not issued an interpretative declaration. Consequently, the French Code of Criminal Procedure, in the context of the restoration of proceedings, are subject to explicit provisions for the recovery of convicts recovered from the restitution of innocent convictions (Stefanie, Gaston and Lavasur, Georges and Blok, Bernard, 1998(P. 1218). Regarding the latest amendments to the French Code of Criminal Procedure Code, article 626 of this law, the 2000 amendment, will in any case result in the government, even if the conviction is inaccurate due to the fault or action of the unwillingness of other persons or judicial authorities., Is responsible for compensating for the damages from criminal convictions. This article stipulate " While complying with the provisions of the second and third graphs of Article of the Code of Judicial Procedure, the person is convicted, but subsequently recognized as innocent in accordance with the provisions of this section (regarding the restoration of proceedings), is entitled to the full compensation of material and moral damages Which the conviction has brought to him. However, if the person's wrongful conviction is due to the fact that he has deliberately not accepted or denied the charge, the damages will be forfeited. Any third party who can prove that such a conviction has caused damage to it may also be claimed under the same conditions. Upon request of the beneficiary, the damages incurred in both of these cases shall be evaluated by the expert opinion, in accordance with the provisions set forth in Article 156 of this Act. Compensation shall be made by the head of the first district court of appeal in the area where the beneficiary resides, subject to the procedures set out in Articles to 144. Whenever a person asks for it, the damage may be determined in the same order as the acquittal. In the criminal court, the court will pay damages in this case, as well as in civil cases, by the judges responsible for the trial without a jury. Takes.: The right to compensation for the stipulation of the lawfulness of this article is not intended to establish the fault or the fault of certain persons in the occurrence of a judicial mistake...the damage is paid by the government, but the right of the state to file a lawsuit against a private claimant, false declarer or witness who may be responsible for the issuance of a wrongful conviction. This damage is similar to the costs of prosecution in criminal matters, And the wrongdoers will be funded from the place where it is prescribed for it". Subsequent to the same article, it is stipulated in order to help restore the dignity and compensate for the damage caused by a judicial misdemeanor. It is stipulated, at the request of the applicant, the order issued in order to restore the proceedings, to prove his innocence, by affixing passages and public places, and publishing the summary of the sentence In the official newspaper and in five other newspapers, the court chooses the public, and the cost of publishing and publishing the advertisement will be the responsibility of the public treasury. (Yousefian Shahdali, Behnam and Rasooli Astiani, Leila, same, pp. 261 and 260( Also, in accordance with Articles to 144 of the French Criminal Procedure Code, referred to in the article, the head of the first branch of the appeals court in cases of claim for compensation, if within 6 months of the final date of the election, acquittal was requested He will submit his or her vote reasonably. The hearing will be open unless the petitioner opposes this. The applicant may ask to be heard personally or through a lawyer. (Assyria, Muhammad, the same, pp. 49 and 27). The ballot issued by the head of the first branch, within 10 days from the date of notification or notification, may be investigated by the National Commission for the Compensation for Exemption. The Supreme Court's Supreme Court has full discretion to hear the case, and its votes can not be redefined at all. It is noteworthy that according to Article 40 of the Regulations adopted by the State Council under the French Criminal Procedure Act, the votes issued by the head of the first branch, which are to be agreed to pay damages, shall be provisionally (without the need for certainty) Be. 77

8 Damage assessment The innocent prisoner suffers damages during the period of his conviction, which is required to be investigated by the judge for compensation, and in this regard he must examine the types of damages and their limits and order compensation. The French court has set out the purpose of determining the damage as follows: "Establishing again and, as a matter of principle, the equilibrium and balance that would have been lost in the position as a result of the impending loss and the loss of the cost at the expense of the accused (the subject of damage) in a situation where, if it were not acted verbally, (Lore Rasa, Michel, same, p. 152) In the past, we were dealing with various kinds of damages, both material and spiritual, so in the event of any financial loss, such as: disability, non-profit or spiritual loss, such as loss of dignity, etc., the court will pay compensation for it. To give. Regarding permanent disability, which is one of the practical issues, the French judicial procedure is hesitant. In the sense of this, too, the issue of devaluation must be considered. Because if the losses were not damaged, it would work and, as a result, the salary and salary would then increase along with the depreciation, so the normal way of compensating for this is that a lifelong colony based on the price index Set to be made for him. If such an indicator is not taken into account, he will not be able to live with the amount of income after a while, so the losses incurred by him will not be compensated. Although there is no legal obstacle to the adoption of such an index, the French Court, which is poorly known for its economic sensitivity, has long opposed this solution and preferred to the detriment Paying significant capital so that they can be supported against devaluation by applying it. Of course, not all losers have enough financial information to fund and exploit it, so it's possible that the results are disastrous in some cases. Lifelong-term pay-as-you-go, based on the price index here, is more than a depreciated value since the lender, after issuing a decree, will not be able to agree to a change in the amount of damages. The French court, which was susceptible to the violation of the method, was finally forced to abandon this method by issuing 2 votes from the mixed branch in (Lorasa, Michel, same, p. 154). The basic principle of the financial compensation is to compensate the injured person for the amount of the damage suffered, which is often the amount of money. In compensation for material damage, the judge decides, based on their view, to assign compensation to the expert or experts concerned. But in the area of spiritual compensation, it is difficult and precise to determine the extent of damage and assessment and its timetable, since the ability to admire in people is different than their appearance, taste and moral character. Some people have a high mental and emotional power that is very effective in helping them to cope with significant incidents. In contrast, there are other people who experience the deepest sense of the smallest incident, so it is not easy to distinguish between these two limits of severity and weakness of the criterion of a general and constant obedience that is adaptable to all individuals, and In principle, there is no established rule or rule for a consistent procedure for the courts. Thus, the court has been widely recognized in the assessment and the schedule of spiritual damages in many laws and procedures. This competence has a positive effect, which is to simplify the procedure and a negative effect, which is the difficulty of justifying the sentences. However, the prosecutor must try to establish a fair balance between the losses suffered and the financial losses that are borne by their members. Obviously, he must fully consider the extent and severity of the damage, the moral character and the family status and the social status of the lost person. On the other hand, the character and the status of the loser should not be ignored, and in the end the court should consider all the circumstances and circumstances. Then, the damage will be assessed and calendered. Obviously, the intrinsic and intrinsic elements of the offender, including his goodwill and his misconduct, should not be ignored. (Neghibi, Abolqasem, the same, pp. 395 and 394). However, usually damages to innocent prisoners, such as lost life, dignity, pleasures of life, are not fully compensated, but the court is obliged, in accordance with the principle of full compensation for damage, to the extent possible, in accordance with fairness Exports. Conclusion Spiritual dignity is the most important human capital, which does not equal its value with any other value. An individual, during his lifetime, strives diligently and at the expense of a great deal of material and spiritual gain, that his backing in social life is a prestige that gives him the opportunity to appear in his social role. And empowers him to carry out his duties in the best way, and for this reason, entering into the aftermath of human life, he takes many tools and opportunities from him. Restoration of dignity is a lexical term for a compound term that has been derived from the words "restoration" and "dignity". Rehabilitation of a person or restoring the dignity of a person, who in Farsi sometimes mistakenly refers to the restoration of the dignity of a person, is the return of a person's personality to him, which is the return of his honor. (Fakhar Tusi, Javad, 2014, p. 21) The mere acquittal of the accused or the declaration of the wrongdoing does not restore the dignity of the person, since this acquittal or declaration is not public, and many of those who have been informed of the charge and authority of the charge are not acquainted with being acquitted or misunderstood. Therefore, you must think that if, through judicial review, the damage sustained by a person's spiritual 78

9 integrity is compensated and his reputation restored. If the damnation of the person who was wrongfully charged or the wrongful and unjustly issued against him is not compensated for, he has gone astray and, if damaged, he is compensated and restored, is treated as justice. The necessity of justice as a rule, which is directed at the state and the ruling person, requires action and compensation for the damage done. The verses of the Qur'an refer to this claim, including the verse 58 of the Qur'an of the of Nisa, which read: " God says, let your bond be given to your people and you will judge justice" Allah will command you to entrust your holders And if you did not see the judgment of the people, judge you according to justice. Therefore, compensation for the illegal imprisonment is one of the obviousities of the criminal law, since the human being has taken his dignity from his unmatched creator, and freedom is one of the most important human rights and should be compensated by damaging it. As with illegal detention in Article 5 (5) of the European Convention for the Protection of Human Rights, compensation is foreseen in most countries of the world. In France, any third party can prove that such a conviction (conviction of false someone else) damages he is also can under the required conditions for the injured main claim for damages that the criteria set forth in Article 156 of the law, Darcy criminal to his request To be considered. compensation is not innocent prisoner may be responsible for the insolvent face that this is inevitable, because the damage he uncompensated remain if the judicial system as well, so this process involved and the responsibility of the government in place. The first step is to strengthen, so the French law action in this area is in the interest of the loss That is admirable. References Abu al-hammad, Abdul Hamid (1994) Civil responsibility of the state: developments in private law (Fourteenth edition). Akhundi, Mahmoud (2005) Criminal Procedure, Vol. 2 (Fifth Edition) Published by the Ministry of Culture and Islamic Guidance. Stephanie, Gaston and Lavasser, Georges and Bullock, Bernar (1998). Criminal Procedure. Volume II (First Edition). Hassan Dadban's Translation. Tehran: Allameh Tabataba'i University. Esmaili Taran, Solmaz (2007) Provisional detention in the European Court of Human Rights. Master's Degree in Human Rights. Faculty of Law, Shahid Beheshti University. Ashoori, Mohammad (1972) The Need for Compensation for Innocent Prisoners (Fifth Edition) Publishing Faculty of Law and Political Science. Ashuri, Mohammed (1996) The need to compensate for innocent losses. Criminal Justice (First Edition) Ganj Danesh Publishing Ashoori, Mohammad (1999) Criminal Procedure (Fourth Edition) Tehran: Publication of the position. Ashoori, Mohammad and others. (2004) Human rights and the concepts of justice, fairness and justice (first edition). Tehran: Publication of the Faculty of Law and Political Science of Tehran University. Aqabaabi Bani, Ismail (2004) Temporary detention from the point of view of jurisprudence and law (first edition). Ansel, Marc (1995) Social Defense (Third Edition) Translation by Mohammad Ashoori and Ali Hossein Najafi. Tehran University Press. Iranian Encyclopedia, Babak. Code of Criminal Advice. Vol. 2 (First Edition) Majd Publication. Barykloo, Alireza (2005) Civil liability (first edition) publication rate. Bagherinejad, Zeynab (2014) Principles of Criminal Procedure (First Edition), Tehran: Nashrhzandi Borikan, Jean-Sesameon, Annie (2010). This criminal procedure. Translation by Abbas Tadayn. Khorsandi publishing. Bushehri, Ja'far (1996) The Issues of Basic Law (First Edition), Tehran: Publication of Judges. Bullock, Bernar (2006) Pathology (Fifth Edition) Translation by Ali Hussein Oberandabadi. Magdalen Publishing Patrice, Jardin (2003) Principles of Civil Liability (Printable Version) Adib Majid Translation. Publishing rate. Pat, Abraham (1957), Special Criminal Law. first volume. Tehran: Tehran University Press. Pyrnya, Hassan (1962) Iranian History from the Beginning to the Sassanian Exodus. Khayyam Library Publishing. Taqizadeh, Ebrahim and Hashemi, Seyyed Ahmad Ali (2001) Civil liability: Safeguarding Qahri (first edition) of Payame Noor University. Jarul, Jalal (1991) Principles of the Al-Muhachat Al Jazea (Syr al-dawa al-amumiyeh) Jafari Langroudi, Mohammad Jafar (1994) Legal Terminology (Seventh Edition) Publishing Ganj Danesh. Har Amali, Mohammad Hassan (1998) Al-Shiite items. Volume 15 Qom: Al Bait Institute publishing. Haramali, Mohammad Hassan (1996) Wales Al-Shi'a. Volume 19 (Seventh Edition) Tehran: Islamiyah Publication Khaleghi Ali (1395) Criminal Procedure. Volume I (publishing C) Publication of Knowledge City. Khazaee, Manouchehr (1998) Criminal Procedure Proceedings (First Edition) Tehran: Publishing Ganj Danesh. Dalwand, Fazlullah (2007) Dividing Civil Liability (First Edition) in Esfahan: Publishing Dadir. Rene, David (1989) Large Contemporary Legal Systems. Translation of Hasan Safa'i and Mohammad Ashuri and Ezzatollah Iraqi. Tehran: Publication of the Academic Center. Reisi, Naguhi (2001) The principles of interrogation and reprimand of the accused with a view to international documents and conventions. Master Degree in Criminal Law and Criminology. Faculty of Law and Political Science. University of Tehran. Agriculture, Abbas (2007). Restoration of criminal proceedings. Journal of Humanities. No. 54 Saed, Mohammad Jafar (2008) Criminal law: Human simulation (First Edition) Legal publication of Shahid Beheshti University of Medical Sciences. Sharifnya, Mohammad Hassan and Fili, Hassan (2015) Compensation for the arrest of innocent accused (first issue). Shahidi, Mehdi (1976). Civil liability booklet. Tehran: Shahid Beheshti University Publication. Safari, Ali (1386) Pathology (First Edition), Forest Publishing. Safaee, Seyyed Hossein and Rahimi, Habibollah (2014) Civil liability: Non-contractual requirements (seventh edition) Publishing the position. Tabataba'i Motameni, Manouchehr (2011). Administrative Rights (Seventeenth Edition) Publishing the position. Tabataba'i Motameni, Manouchehr (1990), Public Freedoms and Human Rights. Tehran: Tehran University Press. Arfaniya Kāsfah, Mohammad Reza (2000) Temporary detention in Iranian and French law. University Publishing. Amid Zanjani, Abbas Ali (2002) makes a guaranty. Publishing rate. Awji, Mostafa (1993) Alanzas al-dawa Al-Jazeera Rights (First Edition) The publication of the Bahson Institute. Ghamami, Majid (1997) Civil liability of the government towards the actions of its employees (first edition) Publishing of the judge Fethi Behnasi, Ahmad (1962). Mussafah al-janaeeahi at al-fiqh al-islami. Birout: Dar al-ala'ida al-arabiya, the guardian of the valley. Fakhar Tusi, Javad (2014) Restoration of Dignity and Compensation for Damage Caused by Criminal Proceedings (First Edition), Publication of the Research Institute of Islamic Sciences and Culture. Ghasemzadeh, Morteza (1999) Principles of Civil Liability (Printed), Publication of Judges. Ghasemzadeh, Morteza (2006) Civil Civic Foundations (Second Edition), Tehran: Publishing. Katouzian, Nasser (2008) Non-contractual obligations. Volume 1 (Second Edition) Tehran University Press. 79