Document Type : Review
Authors
1 jurisprudence and Islamic law department, Bozorgmehr University of Qaenat, Iran.
2 Graduated from the Department of Criminal Law and Criminology, University of Qom. Qom, Iran.
Abstract
According to Note 1 of Article 150 of the Islamic Penal Code, crimes are divided into public-rights (ḥaqq Allāh) and private-rights (ḥaqq al-nās). In the first, insanity blocks prosecution, but in the second, proceedings continue despite mental incapacity. Note 2 of Article 13 of the Code of Criminal Procedure adds that if the accused is insane or unconscious, and even after recovery cannot defend themselves, their guardian must appoint a lawyer, or otherwise a public defender is assigned so the trial proceeds. The author criticizes this approach as inconsistent with jurisprudential rules and ethical principles, calling it prejudgment and a violation of the right to defense in a fair trial. The study recommends abolishing the distinction between public and private rights in such cases and suspending prosecution whenever the defendant is mentally incapable. To protect victims, however, civil damage claims could still be heard through appointed or assigned counsel. Any ruling against the accused could then be enforced under rules for in absentia judgments, using suitable guarantees. This proposal ensures both the defendant’s right to defense and the protection of victims’ interests.
Keywords
Main Subjects
)