Principle of Personal Competence Based on the Nationality of the Victim with a Comparative Approach and An Emphasis on British Law

Document Type : Original Article

Authors

1 Assistant Professor of Law, Faculty of Humanities, Damghan University, Damghan, Iran.

2 PhD Student in Criminal Law and Criminology, Faculty of Humanities, Urmia University, Urmia, Iran.

3 Master of Jurisprudence and Criminal Law, Faculty of Humanities, Damghan University, Damghan, Iran.

Abstract

The principle of personal criminal jurisdiction based on the nationality of the victim in criminal law is the national legislative and judicial jurisdiction over crimes committed against its own citizens abroad. In fact, accepting foreign punishments and sentences is a condition for the national court. The Iranian-British criminal systems are coherent in identifying this type of jurisdiction, however, the maximum range and multiple standardization in Iran versus the minimum range and single standardization of the United Kingdom indicates a kind of differential criminal policy. In Iranian law, personal jurisdiction based on the victim's citizenship can be applied extensively to all crimes with various criteria, including the victim's citizenship relationship with the country of origin, mutual criminalization, prohibition of retrial and retribution, and the presence of the accused in the country. In English Law, on the other hand, personal jurisdiction is limited to specific offenses. Despite sharing the maximum scope, there are also significant differences in multiple standardization between the two penal systems, i.e., in Iran, only in non-prescribed religious crimes, the rule of mutual criminality and the prohibition of trial and retribution of the perpetrator is accepted. Regarding the crimes of hudud, qisas and diyat, the principle of passive personal jurisdiction is applied and in addition to not being bound by mutual criminality, the trial and retribution of the perpetrator are accepted; a strategy that is not compatible with the criminal case in the UK. Therefore, it seems that the exceptional aspect of personal competence based on the citizenship of the victim requires appropriate identification. Accordingly, the British approach is more prudent.

Keywords

Main Subjects

References

  1. Askandari, Fariba (2016). Examining the principle of personal competence and its developments. Master Thesis. University of Qom. School of Law. (In Persian).
  2. Bahramzadeh, Saeed (2014). Study of the principle of personal jurisdiction in Iranian and Lebanese criminal law. Master Thesis, Islamic Azad University, Shahroud Branch, Faculty of Humanities. (In Persian)
  3. Blakesley, C.L., (1984). A Conceptual Framework for Extradition and Jurisdiction Over Extraterritorial Crime.
  4. Blakesley, C.L, (1988). Jurisdictional Issues and Conflicts of Jurisdiction, in Bassiouni, M.C., (ed.) Legal Responses 10 Terrorism: US Procedural Aspects, Dordrecht, Martinus Nijhoff.

 

  1. Blakesley, C.L. and Lagodny, 0., (1991). Finding Harmony Amidst Disagreement Over Extradition. Jurisdiction. the Role of Human Rights. and Issues of Extraterritoriality Under International Criminal Law, 24 VJTL 1.

 

  1. Blakesley, C.L., (1987). Jurisdiction as Legal Protection Against Terrorism.
  2. Blanplain, E., (1993), International Encyclopaedia of Laws: Criminal Law, Vol. 1, Kluwer Law Publishers, Deventer.
  3. Elham, Gholam Hossein and Borhani, Mohsen (2021). An Introduction to Public Criminal Law: Crime and Criminal, Volume I, Sixth Edition, Tehran: Mizan Publishing. (In Persian)
  4. Ebrahimi, Alireza, (2011). International Criminal Law, First Edition, Qom: Aiin Ahmad Publications. (In Persian)
  5. Farajiha, Mohammad and Aghaei, Amin (2012). "Negative and Positive Aspects of the Principle of Personal Jurisdiction in International Criminal Law". International Police Studies. No. 9, 23-1. (In Persian)
  6. FIDH (International Federation for Human Rights) (2010), Extraterritorial Jurisdiction in the European Union. a Study of the Laws and Practice In the 27 Member State of the European Union, Paris.
  7. Habibzadeh, Mohammad Jafar and Ardabili, Mohammad Ali and Janipour, Mojtaba (2005). "Rule prohibiting trial and retrial in international criminal law." Teacher of Humanities. No. 41, 74-47. (In Persian)
  8. Hosseinnejad, Hossein Holi (2014). International Criminal Law, Ninth Edition, Tehran: Mizan Publications. (In Persian)
  9. Geoff, Gilbert, (1992). “Crime Sans Frontiers, Jurisdictional Problems in English Law”, The British Yearbook of International Law, vol. 63.
  10. Mossadegh, Mohammad (2019). Description of the Islamic Penal Code with an Applied Approach, Volume One,  Eleventh Edition, Tehran: Jangal Publications. (In Persian)
  11. Mir Mohammad Sadeghi, Hossein and Izdiar, Ali (2013). "Jurisdiction based on the citizenship of the victim with emphasis on the new Islamic Penal Code". Doctrines of Criminal Law, No. 5, 37-3. (In Persian)
  12. Paul Donovan Arnell., (1998). International Jurisdiction and Crime: A Substantive a Contextual Examination of Jurisdiction in International Law, Thesis submitted for the Degree of PhD, University of Hull.

 

  1. Pourbafarani, Hassan (2020). International Criminal Law, 13th Edition, Tehran: Jangal. (In Persian)
  2. Pourbafarani, Hassan and Beigi Hassan, Fatemeh (2013). "Application of the rule prohibiting retrial in crimes subject to Sharia punishment." Journal of Criminal Law, Year 4, No. 1, 95-73. (In Persian)
  3. Pourbafarani, Hassan (2016). "Principles and Developments of the Principles of Jurisdiction Based on the Relationship of Citizenship", Criminal Law Research, Volume 5, Number 17, 9-30 (In Persian).
  4. Qapanchi, Hesam and Safari, Sadegh (2015). "Jurisprudential principles of the rule prohibiting re-punishment in the Islamic Penal Code adopted in 1392". Jurisprudential research. No. 1. pp. 210-183. (In Persian)
  5. Questionnaires and Replies, (1990). European Committee on Crime Problems, PC-R EJIINF Bil.
  6. Shachor-Landau, C., (1980). Extra-territorial Penal Jurisdiction and Extradition.

 

  1. Shaw, M.N., (1991). International Law, (Third Edition) Grotius Publications, Cambridge.

 

  1. Shakfteh Gohari, Masoumeh (2015). Principles, conditions and effects of the principle of personal jurisdiction in Iranian criminal law, Master Thesis, University of Guilan. Faculty of Literature and Humanities. (In Persian)

 

  1. Shearer, LA., (1994). Starke's International Law, (Eleventh Edition), Butterworths, London.

 

  1. Tahmasebi, Javad (2016). "Principle of personal competence based on the citizenship of the victim in Iranian criminal law", Legal Journal of Justice, Volume 81, Number 97, 141-113. (In Persian)

 

  1. Waliullah, Asghari Roshan (2011). Study of the principle of personal jurisdiction in criminal judicial authorities. Master Thesis. Islamic Azad University Tehran Branch. School of Law.
  2. Varvaei, Akbar and Zubairi, Mohammad (2015). "Study of the historical developments of the competence of law enforcement authorities in relation to crimes committed by Iranian citizens outside the country", Quarterly Journal of Law Enforcement Studies, Third Year, Volume 3, Number 9, 106-79. (In Persian)

Files

History

  • Receive Date: 17 March 2021
  • Revise Date: 23 May 2021
  • Accept Date: 22 August 2021

Share

How to cite

Statistics