DOI: https://doi.org/10.36719/2663-4619/125/31-39
Towhid Hajipour
University of Judicial Sciences and Administrative Services, Tehran
https://orcid.org/0000-0001-5984-7079
t.hajipur73@gmail.com
Statutory Discretionary Punishments (Ta'zirat al-Mansus al-Shar'i)
in the Iranian Criminal Justice System
Abstract
In the classification of punishments under Islamic criminal law, offenses are distinguished based on the type of penalty prescribed. Ta'zir (discretionary punishment) is recognized alongside Hudud (fixed penalties), Qisas (retaliation), and Diyyat (blood money) as one of the principal categories of punishment. In the previous Islamic Penal Code, ta'zir was divided into two types: shar'i (Sharia-based) and deterrent (bāzdārandeh). The new Islamic Penal Code, enacted in 2013 (1392 H.), rightly abolished the category of “deterrent punishment.” However, by introducing the concept of “statutory discretionary punishments” (ta'zirat al-mansus al-shar'i), the legislature created ambiguity within the judiciary and effectively established three distinct types of ta'zir: (1) statutory discretionary punishments, (2) non-statutory discretionary punishments, and (3) governmental ta'zir. In Note 2 of Article 115 of the Islamic Penal Code, the legislature imposed certain limitations regarding statutory discretionary punishments. This has led to several problems within the criminal justice system, including: lack of a clear legal nature, increased ambiguity for legal practitioners, potential violations of defendants’ rights, and a reduction in the application of mitigating and leniency mechanisms.
This article analyzes the concept of statutory discretionary punishments, examining its instances in both Islamic jurisprudence (fiqh) and statutory law, its position within the Iranian criminal justice system, and the legal and practical challenges arising from its inclusion in the Islamic Penal Code.
Keywords: Ta'zir, statutory discretionary punishment (Ta'zir al-mansus al-shar'i), non-statutory discretionary punishment, deterrent punishment