سیاست جناییِ قضاییِ استجازه‌ای در رسیدگی به جرم اخلال در نظام اقتصادی کشور

This article, with a descriptive-analytical method, tries to answer the question of whether in Iran's legal system, the criminal policy of the Estiza Foundation has been fair and effective in dealing with and fighting the crime of disrupting the economic system. Therefore, while referring to the process of approval of Istiza, the challenges of Istizia in 1397 and 1399 have been examined and finally, their function as well as their strengths and weaknesses have been evaluated. The findings indicate the inefficiency of the judicial criminal policy and the failure to achieve the desired result in curbing the crime through its implementation and restricting the rights of the accused. Therefore, measured and scientific methods in the fight against economic corruption should replace the symbolic emphasis on the "war on corruption" and a fair and discriminatory judicial system for economic crimes should be designed and approved in the light of legislative criminal policy in the form of a comprehensive plan or bill.

Introduction

In Iran as in many other countries, special measures have been adopted in the highest policy-making areas to control economic crimes. In this regard, different approaches have been taken at specific times, and in the last step, following the economic crisis of 2017 and the uncontrolled increase of economic indicators such as the price of currency and gold in a short period, the head of the Judiciary in August of the same year, referring to the Economic war, through a detailed letter, requested from the leadership the formation of special courts to fight economic crimes, and with his permission, the mentioned courts were formed.
Although doubts about the ability of the legal mechanism to fight corruption concerns about impartial proceedings and the fear of undue influence have forced the authorities of the criminal justice system to establish special anti-corruption courts (for further reading, see: Ghahramani and Saibani, 2019: 190) and the ineffectiveness of the criminal policy and the usual procedure regarding economic crimes - considering the specific characteristics of these crimes - is an undeniable and obvious issue, but at the same time, it should be noted that granting special powers to special courts and establishing exceptional arrangements should not cause other concerns. At the same time, this action should not lead to leaving the rule of law, threatening or restricting the rights of the defendants, granting extra-legal powers to judicial authorities, or causing other aspects of the crisis in criminal policy; An issue that aims the integration of criminal policy and makes its effectiveness less and less and, according to some, causes double corruption (Heidarizad and Fakhr, 2022: 56). The fact that the judicial system is the designer and enforcer of the law that is the basis for the creation of special discriminatory organizations and proceedings, is not compatible with any of the principles of the separation of powers and the separation of the boundaries of legislation and justice, and ultimately will lead to the distancing of judicial procedures from legislator's desirable criminal policy. (See: Lazerges, 2022: 69). The principle of separation of powers, as one of the principles guaranteeing the status of the rule of law, expresses the granting of the exclusive power of law-making by the society to the legislative body. The obvious result of this principle is the avoidance of other powers from policymaking and legislation.

Methodology

In this article, while analyzing the challenges of resorting to permission-based criminal policy, the rulings stipulated in the first and second permissions of the heads of the Judiciary from the Supreme Leader have been comparatively analyzed and in the first part, the legal position of this permission (Estejazeh) will be examined. Then, entering into the nature of Estejazeh, the contents of its rulings will be analyzed from the point of view of expanding or restricting the rights of the defendants, and finally, the solutions ahead will be explained.

Results and Discussion

After the two-year execution of the Estejazeh and the activity of special courts dealing with economic corruption, the new head of the Judiciary presented a new Estejazeh to the Supreme Leadership to resolve some of the criticisms and challenges that were raised. The Supreme Leadership also agreed with this request by writing that "...accelerating the follow-up of proposals through the legal path and observing strictness in court rulings is strongly recommended". The focal point of this Estejazeh is the leadership's emphasis and statement on "pursuing proposals through the legal path".
The second Estejazeh, despite the disadvantages that were discussed in the previous speech, has taken effective steps to overcome the challenges, but its basic defects remain. For example, the issue of single-stage proceedings is repeated in the Amendment of Permission (Estizan) in paragraph 7 in a different way; with the difference that the 10-day deadline for appeal in the death penalty is not mentioned in paragraph 7.
The experience gained from the execution of Estejazeh has now simplified the path and shows us that the permission-based criminal policy is neither logical nor feasible to remove the obstacles of fair trial, crime prevention, and proper sentencing of economic crimes. Returning to the general provisions of the criminal procedure law is an inevitable necessity, and the creation of any discriminatory rule in the organization or procedure for economic crimes depends on the existence of a transparent, consistent, and specific strategy for controlling and curbing disruptions in the country's economic system, and emotional and cross-sectional policies in economic crises and political turmoil, can never be effective in fighting corruption and only has temporary effects. Ignoring and depriving the accused of many defensive and acquired rights does not only mean removing the defect of the present law but also violating it. Therefore, decisiveness and speed in dealing with economic corruption do not mean limiting and attacking the defensive and legal rights of the defendants, and it necessarily requires observing the principles of fair trial as much as possible to obtain valid and well-reasoned judicial rulings.

Conclusions

There is no valid reason for the possibility of setting criminal rules or assigning judicial authority outside the framework of the rule of law principle in dealing with economic disruptors and corruptors. Resorting to special instructions and contrary to the law with the argument that speed and urgency are necessary in dealing with economic crimes is unjustifiable. Considering the delay of the mentioned crimes and the increase in their scope and destructive consequences, it can be said that until there is no local, codified, and regularized legislative, judicial, and executive criminal policy, the adoption of any other strategy is ineffective and there will be no result other than people's distrust of security and judicial justice.

Selection of References

Ashouri, Mohammad (2016), Criminal Procedures, 1^st Vol., 5^th edition, Tehran: Samt Publications.
Ebrahimi, Shahram and Majid Sadeghnejad Naeini (2013), "Criminological Analysis of Economic Crimes", Criminal Law Research Quarterly, Second year, No. 5, pp. 147-174.
Omidi, Jalil (2003), "Criminal Proceedings and Human Rights", Majlis and Research Magazine, 10^th Year, No. 38, pp. 113-146.
Babakhani, Erfan and Hadi Rostami (2022), "Differential Handling of Economic Crimes in Iranian and French laws", Comparative Studies on Islamic and Western Law Quarterly (CSIWL), 9^th year, No. 1, pp. 31-62.
Heidarizad, Asma, and Hussein Fakhr (2022), "Extra-legal Proceedings: a Critical Review of the Foundations of Judicial Estejazeh in the Light of the Constitution", Criminal Law Research Journal, No. 27, pp. 33-62.
Khanalipour Vajargah, Sakineh (2017), Activists of Iran's Criminal Legislation Process in the Scope of Corruption and Economic Crimes, in Criminal Policy against Economic Crime, edited by: Amir Hassan Niazpour, Tehran: Mizan, pp. 104-71.