Investigation of the Hostage and Kidnapping Offences in Iranian Law and International Law

Transcription

1 Pal. Jour. V.16, I.3, No , Copyright 2017 by Palma Journal, All Rights Reserved Available online at: Investigation of the Hostage and Kidnapping Offences in Iranian Law and International Law Ali Reza Dashtiani, M.A Student of Criminal Law, Electronic Department, Islamic Azad University, Tehran, Iran Masud Biranvand Ph.D., Faculty Member of Law Department, Electronic, Azad University, Tehran, Iran Abstract The purpose of this study is investigating the kidnapping and hostage offences in Iran and international law. The method of this research is descriptive- analytic. According to the achieved results, kidnapping is a punishable crime through the international criminal law and Iranian criminal law as well. There are three elements in the process of kidnapping as the following: legal, mental and material element. The legal element of this crime is stated in the article 62 and 631 of the Islamic criminal code. The following articles are informed in the France punishment law: to and to In the international law, the documents which are related to the hostage crime are the organized elements of kidnapping. The Actus reus of crime is formed with a positive act of kidnapping along with threat, violence, deceit and harshness. According to the mental elements of crime, it is a kind of intentional offence. So the actor should commit the crime and this act must lead to the deprivation of liberty for the judgment debtor. Finally, we concluded that the article 621 of the Islamic criminal law and the law on combating human trafficking are not able to response to the human s needs. The above laws also are not comprehensive enough and sometimes may lead to some abuses via the professional offenders. Keywords: kidnapping, hostage, international law, unlawful detention, child abduction, deprivation of liberty, hiding another person Introduction Freedom is a kind of human right which is obtainable on the basis of divine law or positive law. Protection of natural and legal rights of human being is the final purpose of all religions, schools, social and political entities and security organizations. So, the natural rights are without any limitation unless those limit which is distributed among the society in an equality position. Undoubtedly kidnapping and hostage are the two crimes against people which assault the physical liberty. These crimes have some irreparable effects on people which are as the following: lapsing of human liberty and creating mental and physical injuries. Physical and mental injuries are like murder, assault and betray. Losses of prestige are like aspersion. The above crimes usually take place through the following crimes: threat, reluctance, compulsion and rape with bad intentions. These crimes also happen without any satisfaction of the innocent person. Personal liberty is one of the natural and legal rights which is influenced and injured through the kidnapping crime. Although kidnapping and hostage have some similarities, they are different in many aspects of view. The process of recognition of these differences depends on the kind of crime in contrast with the other crimes. The purpose of the current research is investigating the kidnapping and hostage crimes based on the two mentioned aspects. The elements of the crime are also investigated in this study. There is some vagueness about the regulation and laws in this field, so another purpose of this study in eliminating these ambiguities. Penal policy of kidnapping Professional offenders usually choose the most difficult way in order to achieve wealth. Kidnapping is one of the inflammatory crimes for the offenders. Public order is influenced by this violent crime and lead to Palma Journal

2 408 A.R.Dashtiani and M.Biranvand some troublesome. There are also some follow-up actions for saving the judgment debtor. Actually, this crime influences the public opinions in the society. So, the legislator must determine some procedures in order to suppress these worse activities. By determination of some effective procedures the amount of risk will increase among the offenders. One case will be investigated in details as the following: numerous doctors and social institutes have proposed a suggestion to create a market for exchanging organs. This event was happened by the increasing of the patients who needed organ transplant especially kidney in the United States. According to the critics, they believe that apart from the creation of modern colonialism these exchanges may lead to ignoring the human rights of poor, eliminating the humanitarian activities and disregarding the justice and honor in the society. Although creation of market for supplying the organs is not a new idea, there were some supportive procedures in recent years. The most supportive actions were by the medical society in the organ transplant part. They stated that the most reason is preventing from the hostage of human and kidnapping of human organs. These actions generally lead to death. A lot of economists and boutiques experts believe that creation of this market has some problem from the aspect of morality. Although there are a lot of problems through this field in many countries, it has its own adherents. Kidnapping and hostage subjects may lead to reinforcement of this theory. Offenders don t have any opportunities for committing the crime because of these markets. In other words, prevention of crime is the most significant effect of these markets. There is a moral concern about exchanging kidney. The adherents of this market believe that sellers have enough authorities in order to supply the organs of the body. On the other hand, the opponents state that this kind of market may lead to some inappropriate events in the society such as suppression of honor and justice in the society. This market Have some different effects on the health sector of the community. For instance, the opponents stated that there is a direct relationship between the enhancement of organs supply and reduction of efforts for the organ transplant in the brain dead patients. Although rich buyers are the winners of this process because of the lower prices, these statements also have its own oppositions. It is not possible to argue about this problem in a certainty manner because it has some intentional and unintentional results. Meanwhile, it is necessary to let two parties in order to discuss their concerns. According to the international law, all countries are able to earn money by receiving foreign patients and providing the medical services. This process led to creating an event called transplant tourism. In this method, those patients who are on the waiting list of transplant travel abroad. Actually, the process of transplanting takes place faster than their country. Another form of this event, are people who have an inclination for selling their organs, but there is no legal possibility for this action. So they travel abroad as tourism in order to treat their disease or even have a surgery. It has been seen in some cases that medical staff and even embassy officials have acted as intermediaries in this purchase and sale. Most countries which are active in this field include China, Pakistan and Indonesia. Meanwhile, the internet has become a suitable tool for marketing. In the report recently released by Agence France-Presse, multiple ads about the sale of organs were seen by residents of Indonesia on the Internet. In a case, an Indonesian 16- year-old boy advertised online his kidney in lieu of 350 million rupees (about 37,000 dollars) or a Toyota Camry. Studies of the World Health Organization in 2007 showed that among 8 websites of selling the organs, 3 belonged to China, 4 to Pakistan, and one to Philippines. Organs average selling prices were as follows: kidney 70000$, liver $, pancreas $, kidney and pancreas $, heart $, and lung $. The price of the organ transplantation is much less in Pakistan and decreases about dollars for per kidney. The importance of this issue has caused smuggling and abduction of human organs as well as kidnapping to find a special position in the legal system of the today world. Therefore, regarding its importance, convenient and efficient rules must be legislated based on the rational and preventive principles. The main punishment for kidnapping and similar crimes The punishment is the penalty imposed on the offender. The concept of pain is inseparable from the concept of punishment, and in fact, the pain is the actual characteristics of the punishment. The repressive actions are applied when the preventive strategies are not effective and anti-social actions occur. The punishment is a physical suffering or at least trouble created for the offender. The main punishment in the laws of all societies including Iranian laws is the basic instrument of the penal reaction which may lead to the sentence. In fact, the main punishment is anticipated by the legislator for a certain crime and is directly

3 Investigation of the Hostage and Kidnapping Offences in Iranian Law and International Law 409 sentenced (Goldouziyan, 1998). Therefore, if the legislator determines the main punishment for a crime, the magistrate condemns the delinquent to the main punishment. And sometimes several punishments are specified for a crime. The legislator has merely determined one punishment for the kidnapping in the article 621 of Islamic Penal Code; imprisonment of five to fifteen years and judges is not free to choose one of the two or three penalties. Of course, it is mentioned that if the delinquent commits another crime, s/he will be sentenced to its punishment, too. But in illegal arrest and detention under Article 583, the judge is free to choose 1-3 years in prison or paying fines of 184 to 553 dollars. And in articles 585 and 587 intensify and discounts are intended which will be discussed later. Regarding human trafficking, the legislator has announced in the article 3 of the law on combating human trafficking that if the committed human trafficking is one of the instances contained in the Islamic Penal Code, the punishment will be according to the appointed penalties in the mentioned law; otherwise, it will be imprisonment from two to ten years and pay Fines equal to twice the funds or property derived from crime, or funds and property promised to pay by the criminal to the victim or third party. The factors aggravating the punishment for kidnapping 1. The age of the victim is less than fifteen years. Pursuant to Article 1210 of the Civil Code, puberty for girls is nine lunar years and for boys is fifteen lunar years; but in this case, the year is the same solar year and there is no distinction between boys and girls. Despite the changes in puberty age by the legislators after the Islamic revolution, the kidnapped person s age remained the same fifteen years predicted in the severe penalties law. As if, puberty does not matter at this point, but it is important that the victim is in a highly vulnerable age. The reason of why the legislator has considered the age as one of the causes intensifying the penalties is that the underage person needs more support and kidnapping damages her/him a lot. In addition, the minors are deceived earlier, so should benefit from more support. 2. Kidnapping by vehicle The vehicle often refers to the motorized vehicles; but here it includes non-motorized vehicles such as bicycle. It seems that the legislator means the vehicles facilitating the kidnapping, even if it is the vehicle such as tractor. The reason of that the kidnapping by the vehicle intensifies the penalty is that committing the crime is much easier in this way and also leads to the terror and the victim s possibility of escape is less (Zera at, 1999). Note that in Lebanese law the vehicle must be of iron. In the paragraph 6 of Article 569 of the Lebanese Penal Code, it is announced about the aggravated punishment that if the kidnapper uses the vehicle, whether personal or public transport such as ship, aircraft, or train, it should be made of iron. 3. Physical harm to the victim Although physical harm appears in the body, it also involves psychological damages. The harm to the victim sometimes is due to the kidnapping operation; in a way that the victim resists against the kidnapping operation and is damaged. And sometimes the kidnapper harms the victim to harass her/him that this article contains all these cases. But it should be considered that it is necessary to there be a causality relationship between the kidnapping and damaging. Therefore, if the victim commits suicide in the hiding place or throws himself to escape, it is not included in this intensified punishment; but if the victim is damaged due to the kidnapping and hiding, or lack of proper nutrition, it will be. 4. The harm to the victim s prestige The prestige harm means that the victim is subjected to the reputational damage and almost it is assumed in the cases wherein there is a beautiful little boy or girl; but in other cases, such damage must be proven by the victim. 5. Using force, threats, and deceit In order to explain the above issue, it is useful to regard the article 209 of the General Penal Code Act of 1925: a) Whoever by force, threat, or deceit kidnaps or hides someone to do such immoral acts, will be sentenced to the second-degree criminal punishment of 2-5 years imprisonment; unless, the delinquent kidnaps the victim without any force and with her/his willing and then brings her/him to the relative s home a safe place that is available to her/him, in this case, he is sentenced to 1-6 months of misdemeanor

4 410 A.R.Dashtiani and M.Biranvand imprisonment. Existing one of intensifying factors mentioned in the cases 1, 2, 3, 4, 5, and 6 in paragraph A of the article 207 condemns the delinquent to the more severe above punishments. b) Whoever by force, threat, or deceit kidnaps or hides a woman personally or by another in order to marry him, will be convicted to 1-3 years of misdemeanor imprisonment; unless, the delinquent kidnap her before the issuance of culpability and without any force and with her willing, and then brings her to the relatives home or a safe place available to her family, in this case, he will be adjudged to the misdemeanor imprisonment from 11 days to 2 months. Hence, because of one of the intensifying factors of cases 1, 2, 3, 4, 5, and 6 in paragraph A of article 207, he will be sentenced to the more severe above punishments. In the case of provisions (b) and (d) of this Article, if the victim has consented to marriage, and marriage is done before the issuance of culpability, the perpetrator will not be prosecuted unless is traceable in accordance with the provisions of the Marriage Law. In this case, the penalty prescribed in the law will be enforced. In the cases mentioned in this article, if the act of the perpetrator is subject to the other provisions of this chapter, which entails tougher penalties, the perpetrator will be sentenced to the maximum punishment. The law that was later abolished under other laws, was just enforceable to kidnapping for a particular purpose, i.e. immoral acts, and did not included other forms of kidnapping. In many countries, this form of kidnapping usually has a special crime. Consequential and complementary punishments for kidnapping and similar crimes According to one division, penalties are classified as main punishment, consequential, and complementary. The main punishment is the punishment determined in each case, in criminal law, for any crime that is anticipated. But in addition to this, the judge can complete the punishment considering another punishment; the term which refers to this is "complementary" punishment. Consequential punishments are penalties enforced logically and automatically, and do not need to be indicated in the court. Consequential punishment Article 25 of the new Penal Code mentions about the consequential punishment: definitive criminal conviction for intentional crimes deprives the convict from social rights, as a consequential punishment, after the execution or including the passage of time (the period of time prescribed in this Article). Former penal law did not identify the consequential punishment. However, it was ruled under the Article 20 of the former law, but not so clear. In addition, in Article 25, some provisions are mentioned according to which the convict will be deprived of civil rights consequentially. In addition, some social rights are expressed in Article 26 (as forbidden positions) such as volunteering in various elections, including the presidency, the Assembly of Experts, Parliament, city councils, membership in some organizations, such as the Guardian Council, government, presidency of the Judiciary, General Attorney, the President of the Supreme Court, and the Court of justice. Also, Article 25 of the new Penal Code stated other items, such as the use of governmental signs, being selected as judge, guardian, trustee, attorney at law system, and employment in the government. All of these are examples cases as the loss of civil rights. Based on clause two of Article 25, for any person who is deprived of civil rights as a consequential punishment, consequential effects of crime disappears after deadlines established in law, that is referred to in Article 25, and can live like a person who has no convictions. Based on what mentioned, and derived from Article 23 of the Penal Code, the following conclusions may be drawn: Concealment of corpses, which has a legal punishment of three months and one day to one year in prison, according to the new law, the crime is considered as a crime of grade six and seven. Therefore, if the judge mandates 91 days to 6 months of prison, the crime is considered at grade seven with no complementary punishment; while, if more than six months to one year of prison is mandated, the crime lies in grade six, and the court can consider a complementary punishment. On the unlawful imprisonment, trafficking, hostage-taking, and kidnapping, respectively, crimes of grade five and six for unlawful imprisonment, grade four and five for trafficking, and grade three and four for hostage-taking and kidnapping is considered. These can all be subjected to complementary penalties stated by Article 23 of the Penal Code.

5 Investigation of the Hostage and Kidnapping Offences in Iranian Law and International Law 411 The court "can", according to the crime and offender characteristics, consider one or more complementary penalties. Logically, based on the limiting expressions under Article 23 of the law mentioned above, some cases will be irrelevant, and some can be customized based on the type of crime. For example, if the trafficking or kidnapping is done using a car, the magistrate can consider a driving forbiddance, or if the offender is an employee of government, the court can forbid the convict from accepting governmental positions. According to Article 30 of the law above, the prohibition of employment in certain jobs requires revocation of business licenses, provided that the crime is committed in that job, or employment in a certain position facilitates the crime. On the kidnapping, which is of grade 4 criminal cases, Article 30 stipulates that: The confirmed sentence about the crimes interpreted as being "enemy of god" and punishments up to grade 4, and also scam of more than one billion Rls, if not disturbing the public order or security, will be published in a local newspaper. According to paragraph (b) and (c) of Article 25 of the Penal Code, concealing the body, because of being at grade six, does not include consequential punishments. Illegal imprisonment, if the punishment is subjected to the grade six, will be excluded from the consequential punishment. But, if the judge has established a maximum penalty to be committed, and the punishment of grade five is true, consequential punishment will be considered. On trafficking and kidnapping, because of being of grades three, four, and five, consequential penalties will be mentioned in written sentence. Complementary punishment Complementary and consequential penalties are penalties considered by law or court together with the main punishment. The difference is that, consequential punishments are defined as a result of the conviction and based on law; but complementary penalties are determined as a result of conviction, but by the court. Complementary penalties apply when the legislators allows the judge to, in addition to the main penalty, consider additional penalties. Characterized by the main characteristic of complementary penalty is optionality. That is, the judge "can" use complementary punishment, beside the main punishment. The goal of complementary punishments is to neutralize dangerous criminals, or to redress the re-socialize the offender, or to neutralize a next criminal action. In other words, it is to avoid operations that may be committed by this person in the future. Article 23 of the new Penal Code mentions that the court can sentence a person who has been sentenced to punishment, retribution, or punishment of imprisonment of grade six to one, based on the conditions provided by the law, to one or more of the complementary punishments, such as forced stay in a certain place, prohibition from employment in a specific profession or job, the dismissal from the public service, commitment to public service, and barred from membership in political parties, groups, and political or social groups. However, under the new law, some of these cases which are considered as complementary punishment, such as the prohibition of membership in political parties or social and political groups, violates legal standards, human rights, and civil rights, as well as incompatible with the nature of the natural rights of man. Complementary punishment was too general in former code. I.e. on the basis of Article 19 of this code, "the court could deny civil rights for a person who has committed an intentional crime, and make him/her stay in a certain area or leave there." Article 23 of the new Penal Code, which replaces Article 19 of the former Penal Code, is more transparent. Gangs and criminal groups, in order to legitimize their activities, and also to enjoy a legal entity, register false companies, and its activities are within the framework of a company. Thus, the United Nations Convention against organized transnational crime (Palermo), legislation is emphasized on accepting liability of legal persons (criminal, civil, or disciplinary). Article 5 of the law of fight against trafficking, mentions about the complementary punishment of legal persons: "If institutions and private companies are established to commit the offenses mentioned in the law, albeit with a different title, in addition to main punishments, the corporation will have to be finished." Apparently, the purpose of the application imprisonment is imposition of sentence on individuals forming the corporation (managers), because obviously, imprisonment is not applicable for legal persons. However, imposing a financial penalty can be considered for a legal person. Employment of offensive, as well as having legal personality, requires mandatory

6 412 A.R.Dashtiani and M.Biranvand complementary penalty. Article 4 regarding government employees states: "Whenever employees of government, or institutions, companies and organizations affiliated with the government, armed forces, non-state enterprises and public institutions, or institutions related to the Islamic revolution are involved by any manner in the offenses mentioned in law, shall be sentenced to temporary or permanent suspension. " Conclusion Kidnapping is among the crimes recognized, in Islamic law, as "fight against the god". In Iran's criminal law, of corporeal aspect, according to experts' disagreement, it is considered as a temporal offense and bound to result. In terms of mental aspect, the offense is intentional, that needs a motivation. However, the incentive does not affect the nature of the crime. But in human trafficking, motivation is an important element. Some cases of kidnapping are recognized as a specific crime, which distinguishes them from the general kidnappings, including the abduction of a newborn child (Article 631 of sanctions law), and the abduction of Iranian nationals by foreigners. Also, in terms of jurisprudence, kidnapping is not referred to in Islam. The judges must consider the appropriate punishment for it. Kidnapping is considered as a temporal and constraint crime. It is temporal since it is not stopped in time and constraint because it results in lack of freedom. Kidnapping and trafficking are major crimes against the moral character of individuals. Human trafficking and kidnapping are not limited to their own, and often a precursor for other crimes, such as violating human dignity, and undermine the country's international reputation. They can be considered among the severely punishable crimes to be introduced as an obstacle facing criminals to prevent them from crime. References Ardabili, M. A. General Criminal Law, vol. 2, p. 78. Ashoori, M. (1997). Criminal justice, Tehran, library treasure of knowledge, 1st edition, p. 49. Afrasyabi, M. I. (1975) General Penal Law, Ferdowsi publications, Volume I, Third Edition, p. 70. Hasaskhah, N. comparative study of criminal law about of kidnapping in Iran and Lebanon, Page 49. Zera'at, A. (1998). Islamic Penal Code, Shokouh publications. Vol. 2, Second Edition, p Salimi, S. Abstract general criminal law, S Goldoozian, I. (1997). Musts of the general criminal law, 1-2-3, Mizan publication,, Autumn 1997, Page 341. Mohseni, M. (1990). General criminal law, Tehran, publications of Justice, Vol. 3, 1st edition, p. 90.