Jurisprudential Rethinking in the Principle of the Prohibition of Double Punishment

Abstract

The principle of the prohibition of double punishment is one of the accepted principles of criminal law, according to which every crime should only be punished once. This rule is accepted by Islam and it is imperative to abide. In the aftermath of the Islamic Revolution, this rule has not been accepted if the original punishment was not religious; however, the Islamic Penal Code, adopted in 1392, only accepts this rule in non-legal sanctions. The result of this approach is that the offender, in addition to the primary punishment, must tolerate the religious punishment that is not compatible with the rational principles and the spirit that governs the Islamic law. In this research, by examining the bases of Guardian Council's views on this issue, the fatawa of contemporary imitation and analysis of relevant researches, the Guardian Council's approach to non-acceptance of this rule has been criticized in the sanctity of Shari'ah and, moreover, Adoption of this rule in all punishments has been based on the principle of non-refoulement to the judiciary. Since the famous jurisprudents believe that if the presence of a judge in a lack of authority is in vain and without authority, the reference to him is permissible and his vote is valid, and since in the criminal matters the presence of the offender in the court of law and his punishment are usually It is beyond his discretion that he should consider the verdict of the judge concerned and avoid double punishment for the offender.

Keywords

• double punishment
• retrial
• oppression
• tyranny
• judgment