ensieh salimi; Jalaledin Ghiasi
Abstract
Qassāma (Arabic: اَلْقَسّامَة, lit.: compurgation, tribal oath consists of 50 men of the tribe swearing to being right) is one of the types of evidence in substantiation ...
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Qassāma (Arabic: اَلْقَسّامَة, lit.: compurgation, tribal oath consists of 50 men of the tribe swearing to being right) is one of the types of evidence in substantiation of criminal claims that is specific to crimes. Among jurists, there is a difference of opinion about the possibility of punishing the perpetrator in terms of the general aspect of the crime, assuming that the principle of intentional crime is proved through qassāma. Some have not differentiated between qassāma and other evidence, considering it possible. Some have also considered the punishment of the perpetrator to be contrary to the principle of innocence (Arabic: أصالَةُ الْبَرائَة, lit.: presumption of innocence) and to be in favor of the defendant. This difference of opinion has led to the issuance of a unified legal opinion (uniform judicial precedent), stating that it is not possible to prove the general aspect of the crime in this case. The present research, using a descriptive-analytical method and a critique of existing views, states that the legislator considers the legal consequences of intentional behavior in cases of establishing criminal liability for the offender, without differentiating between qassāma and other evidence. One of these consequences is the taʿzīr (Arabic: اَلْتَّعْزیر, lit.: discretionary punishment) prescribed for crimes against oneself in cases of obstruction of qiṣāṣ (Arabic: قِصَاص, lit. “accountability, pursuing, or prosecuting”), as mentioned in Articles 612 and 614 of the Penal Code. The absoluteness (Arabic: إطْلاق) of these articles also confirms the absence of the aforementioned difference. Therefore, it is possible to prove the general aspect of the crime regardless of the type of probative proof. The proof of this aspect is not based on the evidence for qassāma; rather, it relies on considerations such as the legislator’s expediency in establishing the public aspect of the crime in intentional offenses and the repercussions on the perpetrators of these crimes.
