Volume 28, Issue 4 (2025)
CLR 2025, 28(4): 98-130 |
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Habibzadeh M J, Qasem A. Appropriateness of the Obligation Writ not to leave the House or Place of Residence under Electronic Monitoring with the Individual Freedom of the Accused in French and Iranian Law. CLR 2025; 28 (4) :98-130
URL: http://clr.modares.ac.ir/article-20-75190-en.html
URL: http://clr.modares.ac.ir/article-20-75190-en.html
1- Professor in Criminal Law and Criminology, Faculty of Law, Tarbiat Modares University, Tehran, Iran , habibzam@modares.ac.ir
2- Ph.D. Student in Criminal law and Criminology, Faculty of Law, Tarbiat Modares University, Tehran, Iran
2- Ph.D. Student in Criminal law and Criminology, Faculty of Law, Tarbiat Modares University, Tehran, Iran
Abstract: (124 Views)
After the scientists of Harvard University in collaboration with a group of researchers of this university invented a type of electronic monitoring technology, the attention of criminal law scientists in European countries was drawn to this monitoring method. Among them, the French legislator predicted the presence at the place of residence with electronic monitoring as a compromise [between judicial supervision and temporary detention[. Iran's legislator has also provided the obligation writ not to leave the house or place of located residence with the consent of the accused by determining the commitment amount through monitoring with electronic equipment or without monitoring with this equipment, but the position of this agreement in comparison with other secure penal writs is not clear. Using this secure writ should always be accompanied by appropriate assessment and evaluation; In such a way that the best ground for protecting the rights of the accused, the victim and the society is provided. In addition to violating the defendant's freedom of movement, electronic surveillance also violates his privacy. The findings of the current research, which were carried out with a descriptive-analytical method and by using the library tools, show that the commitment not to leave the home or place of residence is a compound action that sometimes may have the effects and characteristics of temporary detention. Therefore, in addition to the necessity of applying the "principle of proportionality criteria", attention should also be paid to deducting the term of the agreement not to leave the house or residence designated under electronic surveillance from the penalty of deprivation of liberty, and the compensation for damages caused by the application of this order should also be taken into account placed. The French legislator has explicitly predicted the principle of proportionality of the Mesures coercitives with the freedom of movement of the accused and has identified the criteria of proportionality including adeqation, necessity and appropriateness in the strict sense of the word, while the Iranian legislator has defined the way it is compatible with the freedom of movement of the accused and determining the scope and duration of this appointment has not been important at the legislative level. In order to proportionality of this writ with privacy, the French legislator has conditioned the "accused's consent" to the installation of electronic handcuffs and anklets in order to respect the dignity, integrity and privacy of the accused, but in Iranian law, the position of the accused's consent and the effects of non-compliance have not been sufficiently explained and seem to go back to the "designated place of residence".
Keywords: Substitute for Temporary Detention, Freedom of Movement, Privacy, Proportionality, Consent of the accused
Article Type: Original Research |
Subject:
Comparative Law
Received: 2024/05/18 | Accepted: 2024/12/19 | Published: 2025/03/4
Received: 2024/05/18 | Accepted: 2024/12/19 | Published: 2025/03/4
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