چکیده:
در این مقاله، تبصرة 2 مادة 14 ق.آ.د.ک. با هدف تعیین قلمرو آن و مطالبة خسارتهای مالی و غیرمالی ناشی از صدمات بدنی، در کنار دیه، نقد و تحلیل شده است. نتیجة حاصله این بود که دیه صرفاً اتلاف نفس یا عضو یا منافع را جبران میکند و خسارتهای مادی و معنوی ناشی از آسیب بدنی از شمول دیه خارج بوده و براساس قواعد عمومی ضمان قهری و مستقل از دیه قابل جبران است، خواه میزان آنها از دیه بیشتر یا کمتر باشد. بنابراین، حکم مقرر در تبصرة 2 مادة یادشده مبنی بر عدم قابلیت مطالبة منافع ممکنالحصول و خسارت معنوی در کنار دیه و تعزیرات منصوص قابل انتقاد است و اصلاح آن ضروری مینماید. در وضعیت فعلی، رویة قضایی میتواند اطلاق حکم مقرر در این ماده را به خسارتهای معمول و متعارف حمل کند و زیان معنوی و منافع ممکنالحصول غیرمعمول را در کنار دیه قابل جبران بشمارد.
This article provides a critical analysis of Note 2 of Article 14 of the Iranian
Code of Criminal Procedure, adopted in 1392 SH/ 2014 CE, which
vindicates the victim’s right to both blood money (diya) and civil
compensation. The purpose of this study is to determine the scope of the
above-mentioned Article and of the legality of the claim to financial and
non-financial damages resulting from bodily injuries on top of the blood
money. The research method is descriptive-analytical, and the data was
collected in library method, with emphasis on the analysis and interpretation
of legal texts, Islamic legal views and the opinions of legal scholars.
The answer to the question of whether the victim in bodily injuries can
claim, in addition to blood money, the financial and non-financial damages
stemmed from physical injuries or he is only entitled to receive blood money
and is deprived of the right to receive any other type of damages depends, to
some extent, on the rationale behind the blood money rule and on its subject
and territory. It is, however, controversial among Islamic jurists, Imamis and
Sunnis alike, Iranian Judicial opinions, and in the legal literature of Iran and
other Islamic countries what kind of damages diya is intended to cover and
whether or not it is compatible with financial and non-financial damages. In
fact, the divergence over this issue in Iran, like some other Islamic
countries, have reached its peak in recent years.
Nevertheless, a closer examination of the sources from which the blood
money rule is derived, in particular the authentic tradition (hadith) of
Ghiyath, the Qur’anic verse "We have given dignity to human beings" (17-
70), the Islamic jurists’ opinions holding blood money as an indemnity for a
human being’s soul or member (especially some explicit rulings by
contemporary Imami and Sunni jurists), as well as the inherent equality of
the value of people’s lives and bodies regardless of their social statuses,
skills, education, and ages, indicate that blood money in the Islamic legal
system is merely to compensate for the loss of life, organs, or their abilities
and has nothing to do with material and spiritual damage caused by personal
injury.
Hence, the financial losses resulting from bodily harm can be claimed in
addition to the blood money and according to the general rules of civil
liability, regardless of whether their amount is less or more than the blood
money. Even if this view is not accepted, the sources on which the blood
money rule is premised do not imply more than that the financial losses that
were used to commonly result from personal injury in the early days of
Islam, such as the costs of basic and simple treatment and the lost income,
only to the extent of the average income of an ordinary worker, are included
in the blood money. Damages beyond that, like the costs of today's complex
surgeries are thus not covered by blood money and should be compensated
independently.
Also, spiritual damages caused by physical injuries can be claimed
independently of the blood money according to some Islamic jurists and
legal authors, and based on the history of this rule and traditions pertaining
to it. But even if this view is not accepted, although it is arguable that nonfinancial
damages ordinarily caused by bodily harm, such as enduring pain
or suffering or beauty defects within the reasonable limits, are included in
the blood money and are compensated by paying the blood money, these
damages should be compensated separately and in addition to the blood
money if they exceed ordinary levels, especially if they reach the level of
neurological and mental disorders, acute distress, depression, anxiety, severe
physiological imbalance etc., even if the extent of loss is less than that blood
money covers.
Accordingly, Note 2 of Article 14 of the Code of Criminal Procedure,
which prohibits claiming spiritual damages and possible lost profits
(deprivation of the power to work) where blood money is payable or
punishments stipulated in the sources (ta’zirat mansus) are to be inflicted
will be objected in this article. The Note implies, on the other hand, that
financial damages caused by personal injuries (except for the lost profits)
will be compensable in addition to diya (blood money), which is an
important evolution in the legal regime governing the collection of blood
money and damages. In order to remedy the shortcomings of the rule
stipulated in Note 2 and bring it in line with principles of Islamic law and
national legislative system, the Note can be taken to include only spiritual
damages within the ordinary extent (which is to be determined by forensic
experts) as well as lost possible profits in the reasonable sense (such as
the loss of the wages of an unskilled worker subject to the Labor Code),
which is covered by diya (blood money) and thus cannot be claimed in
addition to it. However, if the said damages exceed the usual limits, they are
not incorporated in the blood money and can be claimed separately. Also,
the impossibility of receiving blood money and the lost profits in crimes
with stipulated punishments has no logical justifications or rational bases.
Therefore, this study suggests the necessity of amending Note 2 of Article
14 of the Code of Criminal Procedure based on the arguments here outlined.