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Chapter 3: The Principle of Legality in the Iranian Constitutional and Criminal Law
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3 The Principle of Legality in the Iranian Constitutional and Criminal Law Silvia Tellenbach The principle of legality, which requires that no conduct be punished with‑ out a law describing the punishable act and the punishment provided for it (nullum crimen sine lege, nulla poena sine lege), is generally regarded as one of the fundamental principles of a state governed by the rule of law. It has its place in many constitutions and criminal codes in the world. Likewise, there are provisions concerning the legality principle in the Iranian Consti‑ tution and in the Iranian penal code, called Islamic Penal Code (IPC). In Iranian criminal law textbooks it is considered the core of the legal element, one of the three elements of crime, which consist of the legal element, the physical element (actus reus) and the mental element (mens rea). Accord‑ ingly, the principle of legality, its place in Iranian legal history and in the Islamic law, its requirements and results but also the role and effects of other constitutional and legal provisions, which seem to be inconsistent with the principle of legality, are a topic of discussion among Iranian scholars and practitioners. This contribution will examine the manner in which the principle of legality is dealt with in the Iranian constitutional and criminal law in theory and practice. Foundations of the Legality Principle in Iranian Law The supplementary constitutional law of 1907 was the first Iranian law in which the principle of legality was mentioned (Milani 2007, 41–42). Article 12 runs: “No penalty may be decreed or carried out except in accordance 101 102 Silvia Tellenbach with the law” (al‑Marayati 1968, 18). In addition, other articles of this law, such as Article 9, “Individuals are protected and safeguarded against offences of any kind against their lives, their property, their homes and their honour. No one may be molested, except in accordance with the law,” are formulated in a way that presupposes the validity of the legality principle (Kalantari 1996, 55–56).1 Article 2 of the penal code of 1926/1304 holds that “no act can be regarded as a crime if it has not been recognized as a crime according to the law,” and Article 6 sets out the nonretroactivity of penal provisions (nulla poena sine lege praevia).2 According to Iranian authors, the principle of legality has been accepted in Iranian law ever since (Habibzadeh 2005/2006, 71–72). According to academic opinion, the importance of the principle is based on several aspects: first, on its benefit for the individual citizen, who can recognize what she/he is allowed to do and what is forbidden for him/ her and can act according to this knowledge; second, on its importance for society due to the beneficial influence of legal certainty on economic and cultural activities and public security and order; furthermore, on its importance as a means of criminal policy to guarantee freedom and justice in society; and finally, on its necessity as the result of the principle of separation of powers (Golduziyan 2007, 208–209; Ardébili 2010, 129; Shambayati 2003, 243–46; Milani 2007, 72–84; Kalantari 1996, 67–76).3 Iranian textbooks describe the development of the principle of legal‑ ity in European law from the eighteenth century up to the signing of the Universal Declaration of Human Rights in 1948, which lays down the principle of legality in Article 11 para 2. They also state that the principle of legality has been known in Islam for 1,400 years, offering a number of arguments in this regard. They quote verses from the Qurʾan4 such as 65.7: “God does not oblige a human being to do what is impossible for him or her”; Qurʾan 17.15: “We do not punish anybody without having sent a messenger before”; and others (Eftekhar Jahrumi 1999, 89–93; Faiz 2006, 95–98; Kalantari 1996, 264–72). Furthermore, traditions of the prophet are adduced, the most famous of which, the hadith rafʿ, states that the responsibility for nine things is lifted from humans. And among the things that belong to this group are mistakes and the lack of knowledge. Some authors only briefly remark that the principle of legality has been known in Islamic law since the revelation of Islam (Ardébili 2010, 126; Shambayati 2003, 241). According to some authors, however, these verses cannot be an argument for this principle at all (Milani 2007, 95–97). Others hold that neither the verses of the...