Vol-7, Special Issue-Number5, 2016, pp1425-1430 http://www.bipublication.com
Research Article
Kidnapping of Iranian law and its adaptation in Emamic
Jurisprudence and the UK
Hengameh Nategheh Mirzaie1 and Atefe Lorkojuri2
1Department of Law, Rasht branch,
Islamic Azad University, Rasht, Iran
2
Department of Law, Lahijan branch, Islamic Azad University, Lahijan, Iran Corresponding Author: a.lorkojuri110@yahoo.com
ABSTRACT
Abduction and hiding others are two examples of crime against persons. In these cases the liberty of the victims are taken away and bodily injuries are inflicted and more importantly his charterers are infringed. Islamic Civil Code has devoted one article in particular and some articles in general to it. In criminal law resources of Iran there are lots of enactments on them while in legal writings these are not investigated enough. This thesis aims to study the general and specific elements of these crimes, to point out the laws and regulation status and to justify the jurisprudential views. Their relationships with other crimes such as detention and unlawful imprisonment, causes of punishment intensification, crime commencement and postponement of punishment are discussed as well. Laws of Britain prioritize international laws to domestic laws on these crimes while as per the article 9 of Civil Code the treaties entered between Iran and other states in accordance with Iran constitution which are the same as law priority is given to domestic laws.
Keywords: Abduction, hiding others, unlawful detention, personal liberty, removal of a person’ liberty and child Abduction
INTRODUCTION
God has highly honored human in Holy Quran, in a way that, He mentioned in the verse 70th of Al-IsraSurah "And surely, We have honored the children of Adam, and We carry them in the land and the sea, and We have given them of the good things, and We have made them to excel by an appropriate excellence over most of those whom We have created". In the narrations of Imams, the freedom of human was considered in the essence of his creation. There are many statements explaining liberty of human and specifically its body freedom, including French Declaration of
the Rights of Man and of the Citizen (1789), Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (1966), and The Islamic Declaration of Human Rights (1990). Article 22 of Constitution of Islamic Republic of Iran states that "the dignity, life, property, rights, residence and occupation of the individuals are inviolate, except in cases sanctioned by law".
Statement of the problem
illegal seizure. Kidnapping in penal code of Britain is taking away any person by any party in order to put a government, international organization or any person under pressure of quitting a specific act, threatening to death, assault and battery or threatening to keep up kidnapping. But, penal code of Iran considers no particular difference between kidnapping and abduction. However, abduction can be a commencement of kidnapping, that is, one person can commit abduction and then kidnapping. In Iran, abduction is taken simply and people committing this crime are amateurs, something that is in contrast to some countries, in which abduction is an organized act. This is in responsibility of court to determine the intensity of sentence.
If the crime is nuance and light, maximally six months and 200 pounds will be assigned, but in harsher situations, the kidnapper will face with imprisonment.
METHODOLOGY
1- The method of study was descriptive and analytic.
2- To gather data, library search, virtual database as well as field study were applied.
3- Also, in field study, the legal procedures in two cases of kidnapping and hiding in Guilan province`s courts, from the opening of the case to issuing sentences to court of appeal, were considered.
Legal aspect of abduction
Articles 621 and 631 in Islamic Punishment Code approved in 2013:
Article 621- Anyone who, whether personally or through someone else, forcefully or by resorting to threat or deception or any other means, abducts or conceals someone in order to blackmail or take revenge or for any reason, shall be sentenced to five to fifteen years’ imprisonment. If the victim is less than fifteen years old or if the abduction is carried out with a vehicle or if the victim is physically or sexually abused, the offender shall be sentenced to the maximum punishment provided; and if he has committed any other
crimes he shall be sentenced to the relevant punishments as well.
Note- Attempted abduction is punishable by three to five years’ imprisonment.
Article 631- Anyone who abducts or conceals a newborn baby or replaces him with another baby or declares him to be another woman’s baby instead of his real mother, shall be sentenced to six months to three years’ imprisonment; and if it is proved that the baby was dead the offender shall be sentenced to a fine of one hundred thousand to five hundred thousand Rials.
Hiding and the material aspect
In view of material aspect, another difference between abduction and kidnapping is the immediateness or continualness of their time interval. "Abducting a human is essentially removing the liberty of the victim, which is an immediate crime, while hiding is a continual crime which may happen in a protected and hidden place" (Golduzian, Iraj, specific penal code, 1999).
The problem of this differentiation is that the process of committing the crime is alike. When a person is abducted and moved to another place, abduction would be occurred, no matter whether it is permanent or immediate. This feature is bolded in hiding, that is, when someone hides another person, the hiding crime would be visible, whether permanent or immediate.
The philosophy of crime which is removing the liberty of another person is similar in both crimes. In responding to this problem, it is said that the criterion of segregating immediate and continual crimes is the time required for committing the crime. In immediate crime, a short time is enough. But in continual crime, a longer time is necessary. Abduction and hiding have this difference, because abduction happens right on the time of abducting a person, even if be in a very short time interval.
is somehow acceptable; therefore, abduction goes under the heading of immediate crimes.
Spiritual aspect of abduction
Abduction, like other intentional crimes, needs criminal intention. Criminal intention is the conscious will of deviating penal code, that is, the person knows his action is considered a crime in terms of law. If we consider abduction and hiding as specificmisconduct, they require a particular intention. It should be noted that, sometimes, a person has a beneficial motivation for abduction. For example, he abducts a girl who is in danger of sexual abuse, or hides a person being under the risk of abduction. Sometimes, a man hides his wife in order to prevent her to go to illegal places, or a father may hide his child to prevent him from disturbing neighbors. In another situation, a man might return his wife left their house. Is it possible to proceed against these acts considering article 621? It can be interpreted by article 621 that the answer to this question is positive but legal reasons suggest that these acts shouldn’t be considered illegal.
Abduction as a robbery
All Shiite and Sunni clergymen believe that robbery can be considered in the case of taking away a property. So, abduction cannot be a robbery and its particular punishments can`t be applied for abduction. Therefore, there would be no difference whether victim is a child or an adult. If the victim be an adult, there are some conflicts. Also, there is dispute regarding a crazy man. "If somebody abducts a crazy or immature person, his hand would be cut, because they are considered as property. But if they be mature and healthy, the hand of abductor won`t be cut, because their robbery is not possible and if someone abducts them forcefully, it cannot be considered a robbery. Only if the victim is sleeping, the hand of abductor would be cut" (IbnGaddame, Abdullah bin Ahmad, Alkafi, 634).
Abduction as sedition
Sheikh Toosi (P) states "anyone who abducts or sells a free human, his hand should be cut, because he is a seditious".
Abduction as a crime needs Ta`zir
Clergymen stated a general rule indicating "anyone, intentionally and consciously, commits an illegal act or puts aside a legal action, the judge can assign him a deterring sentence"
(MousaviKhuei, SeyyedAbolghasem,
Fundamentals of Tokmaleh al Menhaj, 407/41). Therefore, abduction would be in this category and judge is capable of appointing a relevant deterring sentence for abduction (Najafi, Mohammad Hasan, Javaher al kalam, 511/41). Islamic penal code defines a segregation between Ta`zir and other punishments (article 16 and 17), but does not clarify the criterion on segregation.
Will the short term of four minutes be considered abduction in Iran?
In responding to this question, first the opinion of professors would be clarified concerning immediateness or continualness of crime. Their opinions are divided into two groups, in which Dr. Katuzian and Sadeghi consider abduction as an immediate crime, while Dr. AghaeiNia knows abduction as a continued crime.
Dr. Katuzian states that "abduction is the material aspect of robbery whose subject is essentially property. Here, the main point is abducting and hiding a human in any way. Finally, abducting a human would result in removing his liberty, which is an immediate crime, while hiding is a continued crime in which the captured is located in a locked and unknown place" (Golduzian, Iraj, penal code, p.212).
Dr. Mir Mohammad Sadeghi states that
"abduction is an immediate crime, but its permanency can contribute in illegal hiding of people. Abduction is an intentional crime in a way that the offender abducts someone without its will. Therefore, whenever anyone is not aware of the presence of another person in his car`s trunk and moves him, or changes the place of a supposed died person, he has not committed abduction" (Mir Mohammad Sadeghi, Crimes against people, 568).
the abductor. For example, a mother who abducts her child being under the custody of his father in order to satisfy her motherly emotions, is not an abductor; while, anyone who abducts another person in order to reach to his money is considered an abductor" (HosseinAghaeiNia, Crimes against people, p. 173).
In penal code, judges pay attention to malintention of the accused. Often, the accused is removed from the given crimes due to lack of malintention. Concerning opinions of above professors about immediateness or continualness of abduction, having malintention even for four minutes is enough for proving abduction, since abduction is a crime bounded to a result.
Abduction in Britain
Kidnapping is considered an independent crime in some countries like Britain, but, in practice, is an illegal seizure. Kidnapping in penal code of Britain is taking away any person by any party in order to put a government, international organization or any person under pressure of quitting a specific act, threatening to death, assault and battery or threatening to keep up kidnapping. But, penal code of Iran considers no particular difference between kidnapping and abduction. However, abduction can be a commencement of kidnapping, that is, one person can commit abduction and then kidnapping.
Dividing crimes
Crimes, primarily, were divided based on their size, small or big. Abduction in Britain is considered in terms of kidnapping and abduction. This classification was cancelled based on the first article of penal code approved in 1967. Today, two new classifications are introduced. First, a differentiation is set between arrest able and unarrest able crimes (Police Codes, 1984). This classification points to the right of police to arrest offenders in short and long term detentions. Second, crimes are classified on the basis of financial punishment and also imprisonment (Penal Code, 1977). Due to the fact that kidnapping and abduction are among harsh crimes, they are required both kinds of
punishment. If the crime is nuance and light, maximally six months and 200 pounds will be assigned, but in harsher situations, the kidnapper will face with imprisonment. House of Lords; Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood; 16 November 2006) [2006] The Times November 17The mother and father were divorced, the child, then 1-year-old, remaining with the mother. When the child was 4 years old, the mother removed the child from Romania to England without the father's knowledge or consent; the father then sought the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Convention). The mother's case was that the removal had not been wrongful, in that the father had no custody rights which had been breached by the removal. The English court sought determination of the issue from Romania. The final ruling from the Romanian courts was that the removal had not been wrongful, because the father's rights had not amounted to rights of custody: joint-custody ended on divorce, and none of the rights that the father had been granted on divorce gave him a right of veto or to decide the child's place of residence. The English court did not consider itself bound by that ruling, and ordered jointly-instructed expert evidence on the issue. In the event the expert concluded that the father had held rights of custody, and the English court ordered the immediate return of the child under the Hague Convention. The Court of Appeal refused the application of the child, now 8 years old, to be joined as a party to the proceedings, but ordered an interview with a Children and Family Court Advisory and Support Service (CAFCASS) officer, in which the child expressed very strong objections to returning to Romania. The child was given leave to intervene in the mother's appeal to the House of Lords.
of the requesting State was to be treated as determinative unless it was clearly out of line with international understanding of the Hague Convention's terms. There was no good reason to distinguish the court's right of veto from a parental right of veto, whether the latter arose by court order, agreement or operation of law, and therefore the right to veto the removal of a child from the country of habitual residence did amount to rights of custody. However, that was not necessarily true of a parent's potential right of veto; if all that the non-resident parent had was the right to go to the court and ask for an order about some aspect of the child's upbringing, including relocation abroad, that did not amount to rights of custody under the Hague Convention. A delay of this magnitude in securing the return of the child had to be one of the factors in deciding whether the child's summary return, without any investigation of the facts, would place the child in a situation which he should not be expected to have to tolerate. It was inconceivable that a court which had reached the conclusion that there was a grave risk that the child's return would expose him to physical or psychological harm, or otherwise place him in an intolerable situation, would nevertheless return him. While the policy of the Hague Convention was, of course, a reason for giving a restrictive application to the Art 13 defenses", those defenses could be made out on the facts of the individual case, regardless of the court's view of the morality of the abductor's
actions; moral condemnation was both
unnecessary and superfluous. The court had heard none of the evidence which would enable it to make a moral evaluation of the abductor's actions, was not in a position to judge and should refrain from doing so. Children ought to be heard far more frequently in Hague Convention cases than had been the practice hitherto. In most cases an interview with a CAFCASS officer would be sufficient, but in other cases it might also be necessary for the judge to hear the child. Whenever it seemed likely that the child's views and interests might not be properly presented to
the court, in particular if there were legal arguments which the adult parties were not putting forward, the child should be separately represented.
Comparing two sentences
Laws in Britain are in the category of common law. In text 12, it is used another sentence of abduction in case of a child born illegally, therefore, abduction was removed from text 12. But judges in court of appeal considered formal marriage of parents in Romania, therefore, they sentenced to abduction of child by its mother and necessity of its return to Romania.
Statistics of abduction in two countries
The head of Iran`s Police declared that "in 2012, 321 cases of abduction and kidnapping were occurred. In 2002, this number was 1140 which shows significantly 70 percents reduction. In 2013, the number of abduction in Guilan was 42 cases (documented in bureau center of Guilan`s Home of Justice).
The number of abduction in Britain between 2012 and 2013 were 176 cases in London, 22 cases in Wales and 55 cases in North Ireland (Scotland Yard).
The number of abduction in Britain between 2013 and 2014 were 184 cases in London, 24 cases in Wales and 50 cases in North Ireland (Scotland Yard).
CONCLUSION
abducted. In Latin America, the statistics of abduction is so high. In Iran, there is no proper and accurate report about abduction. While most of abduction in Latin America is due to class differences, in Iran, most of abductions are occurred due to financial, sexual and religious reasons. It should be noted that abductions for sexual motivations are going to increase.
RECOMMENDATIONS
It is recommended, based on 15 million cases in Iran`s courts and 550 thousand cases in Guilan Province courts as well as increasing volume of cries, that every family in Iran has a lawyer and consultant like Britain. Also, all citizens should try to promote their knowledge regarding prevention of crimes. This is because human is a soul not just a body. As Freud said, "men are like an iceberg most of which is under water and only a small part is over water".
REFERENCES
1. AllamehHelli, Principles of Ahkam.
2. Golduzian, I. (2001), Private penal code, Tehran University press, 7th edition.
3. HorAmeli, M. B. H., Vasayelol Shiite, Beirut. 4. HosseiniShirazi, S. M. (1988), Beirut, 2nd
edition.
5. IbnGhadameh, A. I. A., Alkafi, A. A. M. (1990), FegholShiieh, Beirut.
6. IbnIdris, M. (1990), Alsaraer, collected by Ali AsgharMorvarid, FegholShiieh, Beirut, 1st edition.
7. JabeiAmeli, (1992), Principles of Islamic codes, Qom, Bita, volume 9.
8. Mir Mohammad Sadeghi, H. (2011), Analysis of fundamentals of public penal code, Jungle Publication.
9. Najafi, M. H. (1988), Javaher al kalam, Tehran, 3rd Edition.
10.Naserzadeh, H. (1993), Human rights declarations, JahadeDaneshgahi Press, 1st edition.
11.Police-recorded child, abduction and kidnapping, 2012/13 to 2013/14, England, Wales and Northern Ireland, Geoff Newiss, Craig Collie.
12.RED (ABDUCTION: RIGHTS OF
CUSTODY)[2006] UKHL 51 House of Lords, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-Under-Heywood16 November 2006.
13.Sheikh Toosi, M. B. H. (1990), Collected by Ali AsgharMorvarid, FegholShiieh, Beirut, 1st edition.
14.Zera`at, A. (2001), Description of Islamic
