Public Law Researsh

Abstract "public morality" is one of the most important restricting concepts of human rights and freedoms, Despite its inclusion in many human rights instruments, there is no precise definition and clear explanation of its meaning and conditions for imposing its limitations on individual rights. To avoid arbitrary restrictions to these rights, and in the absence of laws and regulations that can provide a complete and comprehensive formulation of the conditions for the application of general ethical constraints on individual rights, the reference to the case laws of the European Court of Human Rights (ECHR) as a leading, active and innovative institution in the field of human rights could be promising. In context of conflicts between individual rights and public morality, ECHR has adopted different approaches: regarding conflict between individual and sexual morality, mostly public morality overcomes individual rights, although in homosexuality cases, unlike the usual case laws, ECHR prefers individual rights to public morality. In non-sexual case laws, united approaches cannot be deduced from ECHR precedent. Although the lack of a definition of public morality and the granting of "broad margin of appreciation" to member states in defining the concept of universal morality and its implications are the greatest weaknesses of the ECHR precedent, the precise formulation of the conditions for imposing restrictions is one of the greatest achievements of the Court.

Abstract The September 11 attacks showed that existing international legal and regulatory regime suffers from many gaps and deficiencies to deal with the offence of unlawful interference against civil aviation. In this regard, the 2010 Beijing Protocol seeks to provide new preventive approaches to deal with aerial hijacking so as to make it possible for the timely identification of such offences before being committed. For such reason, the protocol criminalizes many new ancillary offenses related to hijacking, such as assisting the offender to evade criminal investigation and prosecution. Threatening to commit criminal acts or causing any person to receive such threats is also considered as offence itself, if the threat is credible. Also, conspiracy with others to commit terrorist acts, regardless of whether the terrorist crime is actually committed or not is another example. Therefore, for the first time, the protocol recognizes legal and criminal liability for legal entities which is known as "Al-Qaeda Clause". The "Military Exception Clause", however, has been considered as a challenging matter in the Beijing Protocol.

Abstract The current refugee and migration crisis in Europe has intensified different forms of vulnerability including different types of sexual and gender- based violence for female refugee as well as asylum seekers. These women, who are travelling to seek refuge in Europe, may be exposed to various kinds of violence on the route, transit or destination countries. The lack of adequate accommodation or reception facilities in European countries and taking irregular migration paths with smugglers, have amplified the vulnerability of refugee women. Considering the increasing number of refugee single women and unaccompanied children towards Europe since 2016, international organisations and European NGOs expanded working on recognition and providing legal and medical protection for vulnerable women. The UNHCR, according to its supervisory responsibility has emphasised on assisting European countries to fulfill their international obligations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees as well as other European instruments relating to refugee law. This paper has assessed the status of victims of gender violence. Moreover, it has overviewed UNHCR's guidelines and actions to prevent and response to sexual and gender-based violence in crisis situation in Europe.

Abstract Public law as a discipline of legal science which considers public matters –in confront with private matter, is established in ancient Rome and influenced deeply the European history. In the first step, its basic concepts, such as Imperium and Jurisdictio, and its outlook toward the relation of power and law, gave way to the concept of sovereignty as a monopoly of approving, changing and abolishing of statutes. It leads to the establishment of authoritative governments. In the second step, it provides the proponents of absolutism with legal arguments against their traditional and new rivals. At the end, it were the constitutionalists who promote Roman law with some principle of roman private and corporate law and reinterpretation of old concepts in shadow of new needs of era to apply them against their oponents. Finally, these disputes resulted in our understanding of modern state and representation and Roman law, despite to its flexibility, leaved its lasting impression, i. e. formulation of political conflicts in the legal language.

Abstract Crimes related to drugs and psychotropic substances are recognized as threats to human rights. They have also a devastating impact on the economic, social and cultural foundations of national societies, as well as, on international order and security. Serious measures have been taken to control and deal with those crimes, yet these actions should be consistent with human rights requirements. Limiting the death penalty to the "most serious crime" is one of the most important human rights requirements in the contemporary world. Since human rights institutions have not considered drug-related crimes as one of the "most serious crimes", the parliament can play an effective role in avoiding the emergence of international responsibility for the Iranian government by limiting the death penalty.

Abstract   The formation of the Special Court for the Criminal Investigation of the Press

over the past three decades, in addition to the main philosophy of the
Constitutional regime under Article 168 of the Constitution - that holds the
judicial protection of defendants from
committing political crimes derives from peaceful conflicts against the government and the governing body, and not the
perpetrators of various non-political crimes through the press - the jury's
misrepresentation in the proceedings of the media and the issuance of non-specialized,
unfair, disproportionate, contradictory, and sometimes unlawful
regulations have resulted in continuous violation of the rights of individuals, judicial arbitrary discrimination and violations of law.
The implementation of the "Political Crime Act" (due to the expectation of a single jury for political courts and press) in the final stages and the
implementation of the recent "press and news agencies bill" (which has established effective regulations in the competence of press jury) can
reduce the costs and damages caused by the jury's inadequate interventions and to compensate to a considerable extentthe disregard of the
establishment philosophy of the jury and the purpose of the lawmaker in the incorporation of this institution in the judicial system.

Abstract The criminal responsibility resulting from other’s behavior has been recently constituted in Iranian criminal system which has been ratified in the Article 142 of the Islamic Penal Code on April 21, 2013. Thereby, such a responsibility has been based on the letter of law. In Iranian criminal system, paying the blood money (diya) is one of the penalties. Therefore, it can be said that rational responsibility, crime responsibility guarantee for the other party, responsibility of the State and responsibility of the government in paying the blood money and compensating damages out of the treasury to the victim are the types of responsibilities resulting from other’s behavior regardless of the fact that such responsibilities are seemingly of civil nature. What is being discussed in the article is whether, regarding the Islamic nature of the ruling system in Iran and the matter of facts and the history of government in Islam and the spirit of the principles of the Constitution and the teachings of public law, and indeed in these cases, is the responsibility with the State or the government?

Abstract Iran, as the holder of world’s fourth largest oil reserves and world’s largest gas reserves, is sensibly exposed to pollutions resulting from oil and gas industry which is its most important economy sector. A significant portion of these pollutions is caused by the upstream oil and gas industry and the remaining portion is resulted from the downstream oil and gas industry. The present research is dedicated to the legal requirements stipulated in Islamic Republic of Iran’s Fundamental Legal Instruments. These instruments include the Constitution, Five-year Development Plan, the Twenty-year Perspective Law, General Policies and similar documents. The central assumption of this study is founded on the idea that fundamental instrument of the Iranian Legal System have a solid general approach with regard to the issue of environmental protection in upstream oil and gas related activities. This approach is specifically evident in Principle 50 of the Constitution.  

Abstract In Iran, claims concerning administrative responsibility of State are dealt with in two different courts. When the Court of Administrative Justice (“CAJ”) has ascertained the breach of law, the Ordinary Court determines the extent of the damage suffered. This duality in judicial procedure is the relic of the Law on the State Council approved in 1960, which seemed logical given the constraints of that institution, which was contrary to the constitutional rules. However, the CAJ is identified in the Constitution of the I.R.I as part of the country's judiciary and the article 173 of the Constitution grants the jurisdiction over complaints, grievances, and objections of the people against the State. Accordingly, this duality is not compatible with the current judicial structure of the country and it aggravates slowness of judicial process, and increases the complexity of the judicial system and its costs, without any clear necessity.

Abstract Global communications law is a transnational law, the vast majority of which is developed outside the governments and essentially is seeking synchronization, not uniformity. This article tries to answer the questions of how global communications law affects national and territorial law. What are the decisions of governments against it’s effects and consequences? What are the actions that are being taken and how the resistance to the global communications law would be conducted? And based on what reasons and logic the resistance is observed? The results of this study indicate that the phenomenon of globalization and the formation of universal norms have an impact on legal systems. In other words, globalization has made legal systems vulnerable to the penetration of foreign norms and has made them vulnerable to coping and resisting to this phenomenon. Also, the globalization, have made legal systems to compete with each other, in such a way as to reveal the differences, similarities, strengths, and weaknesses of each, and it has led governments to coordinate their norms instead of confronting this phenomenon.

Abstract The high role of the judicial interpretation in the legal system is not overlooked. This research attempts to find the approach of interpretation that Supreme Court obtains in the role and supervisory position of judiciary in interpretation procedure. Yet the problem is how the approach and the interpretative method of the Supreme Court can lead to adjudication or hostility. According to the importance of the unity of interpretation and position of the precedent of the Supreme Court in judicial system, it seems that the Supreme Court has not been effective in interpretation and protecting rights and freedoms. The precedent of the Supreme Court shows that legal formalism and reliance on textualism and literal interpretation of the approach have not been completely dominant and prevalent by the Court and dynamic interpretation in some cases in line with the conditions of cases has been regarded by the Supreme Court. It is important to note that whenever the Court made use of such dynamic and purposeful interpretations, the results lead to adjudication.

Abstract Right of access to information is one of the fundamental principles of democratic governments and the most important example of the first generation of human rights that guarantees the citizenship rights. The human rights, as the basic rights, are a fundamental obligation and commitment the legitimacy of which isnot subject to stipulation in the constitution. However, the citizenship rights can only be realized under the prescriptive duty that an obligation exists along with any right for the citizen. With the rapid expansion of social networks, identifying and guaranteeing the right has become one of the most important examples of the realization of citizenship rights in the legal system of Iran. Despite the adoption of the law on freedom of publication and access to information adopted in 2009, no specific executive guarantee has been contemplated. Weaknesses such as ambiguity and shortcomings in definitions and concepts, lack of the formation of a commission under article 18 of the mentioned law are factors of non-fulfillment of the right. The main question is what are the principles governing the regulation of the Iranian legal system in the area of ​​the right of access to information and how do they affect the realization of citizenship rights? The main hypothesis is that knowledge about the capacity of the Iranian legal system in the area of ​​the right of access to information can be effective on citizenship rights.