Document Type : Original Article
Authors
1 PhD student in Criminal Law and Criminology, Ferdowsi University, Mashhad, Iran
2 Associate Professor, Department of Criminal Law and Criminology, Ferdowsi University, Mashhad, Iran
Abstract
Highlights
Water resources management in the framework of administrative-judicial criminal policy is one of the most important topics of public law knowledge; Because the prevalence of crimes and violations against water resources in a society will have environmental, social, economic and security consequences; Therefore, paying attention to appropriate scientific indicators in order to define an effective administrative and judicial criminal policy can be considered as a powerful and useful tool.
Regarding the application of criminal punishment in order to deal with water offenders, it is very important to pay attention to the philosophical approaches of punishment and the intellectual foundations of this knowledge. The consequentialist approach to punishment is based on the belief that the imposition of punishment on offenders is fundamentally ugly unless the imposition of punishment has the benefit of preventing the recurrence of the crime, of correcting the offenders. However, in contrast to the latter theory, there is a punitive approach. This scientific approach believes that in dealing with the perpetrators of various crimes, including water crimes, punishment does not seek to achieve goals and benefits in the future. Rather, the purpose of punishment is to revive environmental values in the watershed. Another view of dealing with perpetrators of destructive behavior against water resources is that in order to combat water crimes, one should not necessarily rely on criminal means, but can use administrative penalties to control these destructive behaviors that are violated in law. And guided the protection of water resources.
It seems that in the field of combating destructive behaviors against water resources in the irrigation project of Sistan plain, a combination of criminal and administrative penalties can be policy in parallel. However, due to the expansion of administrative proceedings in various fields, there have been serious criticisms by some criminal law jurists about the downsizing of criminal law instruments. However, the emergence of these criticisms in the context of thinkers in this field is not absolutely defensible; Because the perpetrators of water crimes are not basically anti-social, but most of them are motivated by livelihood-dependent agricultural activities.
Numerous works have been embellished in the field of criminal punishment in the field of combating water crimes. However, despite the importance of water resources management in Sistan by resorting to criminal and administrative tools, written works that have scientifically studied the application of administrative and criminal penalties for the protection of water resources, have not been observed. The novelty and critique of judicial judgments related to water crimes in Sistan and the review of administrative regulations in the field of investigating violations against water resources, seeks to assess the effectiveness of these measures in the field of water resources management.
The present article intends to answer these fundamental questions: What role does the imposition of criminal penalties and administrative proceedings play in the management of water resources? What will be the effects of the punishments issued by the branches of the courts of the Sistan jurisdiction and the corrective and preventive reflection? What is the position of administrative proceedings in water resources management? In answer to these questions, three hypotheses are put forward. The first hypothesis is that the consequentialist approach is less deterrent than punitiveism in the field of water punishment, and the second hypothesis is that a combination of criminal punishment and administrative proceedings in the field of water crimes can have adverse effects in different aspects of the country's legal system.
The research findings show that the reflection on the reading of philosophers in the field of the institution of punishment indicates that the knowledge of philosophy in the field of punishment has different attitudes. For this reason, judicial policies are also influenced by the legislator's philosophical approach to water crimes. On the one hand, the approaches derived from these attitudes are manifested in the philosophy of consequentialism, which considers punishment to be inherently ugly, and is based on the notion that what makes this institution permissible in the field of water crimes and the judiciary emphasizes its use is in fact It is the realization of the benefits that are expected from punishment in the future. The most prominent of these benefits are; Preventing water crimes by raising crime costs, correcting offenders, and more. In contrast, there is a punitive approach to the nature of punishment in water crimes, which states that punishment is inherently good because it leads to the restoration of moral values in the field of water conservation; Therefore, the purpose of punishing is not the possible benefits of it, but the restoration of the values respected by society. However, choosing the most appropriate philosophical approach, with minimum social costs and maximum efficiency in the protection of water resources, requires an intelligent understanding of the theoretical foundations of the philosophy of punishment in this regard. Understanding based on the link between scientific foundations and field research will affect the interaction between judges' scientific foundations and the functioning of the criminal justice system in combating these crimes. In the present study, for the first time, the philosophy of punishing water crimes in the judicial decisions of Sistan plain has been analyzed. An examination of the sample of votes in this area shows that the philosophy of punishment is generally reflected in the two approaches of utilitarianism and punitiveness based on the scientific principles of judges and the legal powers granted. This study revealed vague and complex points about the performance of the judiciary in the Sistan constituency regarding the punishment of water crimes. For example, we can point to the lack of intellectual coherence of judicial authorities in different branches in adopting a single approach to the philosophy of punishment. The consequence of this fragmentation of intellectual foundations makes it difficult to protect water resources through the capacity of the penitentiary.
On the other hand, the results of the philosophical analysis of punishment in the law of equitable distribution of water clearly showed that the legislator seeks to reform water offenders through intimidation resulting from the imposition of the punishment of flogging as well as short-term imprisonment. This style of punitive process is closely related to the utilitarian approach in punitive philosophy. However, the feasibility study of achieving these goals in the Sistan plain basin shows that the main perpetrators of water crimes in the 46,000-hectare farming community plan are those who lack anti-social sentiment. Therefore, the imposition of the punishment of whipping humiliation can not be a deterrent for those who, according to religious beliefs, consider water as a blessing from God and seek agriculture for their livelihood. On the other hand, the imposition of imprisonment has no corrective function in the short term, and its maximum function will be to disable the perpetrator from repeating water crimes for a short period of time.
In the field of administrative proceedings, it should be said that one of the positive legislative measures in the 1380s is the adoption of laws on the use of groundwater, which helps to preserve groundwater aquifers. Predicting administrative proceedings in the field of water; It has the benefit that in addition to preventing the entry and filing of multiple cases in the judiciary; It causes the litigation of the subject matter of the law, in a professional manner and with the presence of the representatives of the Agricultural Jihad Organization and the regional water company of the province as technical members of the commission and with the presence of a qualified judge and the composition of the verdict by him.
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