ABSTRACT: Among crimes against human liberty, kidnapping stands as one of the most perilous offenses, to which Iranian criminal law reacts with stringent measures. This article analyzes various dimensions of this crime, including abduction and concealment, drawing upon Article 621 of the Islamic Penal Code and its 2020 amendment. It endeavors to provide a more precise framework for this offense. In doing so, distinctions between kidnapping and similar offenses, such as unlawful detention and human trafficking, are also explored. The research indicates that a lack of judicial uniformity in certain instances has led to divergent interpretations and inconsistent rulings. The concluding section of the article, in light of recent legal amendments, analyzes the role of motive in determining the criminal nature of kidnapping and emphasizes the necessity for judges to accurately identify the elements of the crime. The primary focus is to elucidate ambiguities and present a coherent interpretation of kidnapping within the context of the national criminal justice system.
SUMMARY: Introduction – Chapter One: Theoretical and Legal Foundations – Chapter Two: Review of Legislative Developments – Chapter Three: Analysis of Judicial Precedent – Conclusion.
Introduction
The right to free movement is recognized as a fundamental pillar of human dignity in many legal systems. Among the serious threats to this liberty, kidnapping, if it occurs, not only imperils the victim but also creates insecurity within society. In Iranian criminal law, Article 621 of the Islamic Penal Code specifically addresses this crime, and following the 2020 amendments, some penalties have been revised. However, a complete consensus among legal scholars and judicial practice remains elusive regarding the interpretation of key concepts in this article, such as “abduction,” “concealment,” and “consent.”
In this research, the author endeavors to delineate the conceptual boundaries of kidnapping from offenses such as unlawful detention, human trafficking, or hostage-taking by meticulously examining its various elements. Furthermore, the significance of motive in determining the criminal description is emphasized, as an act that superficially resembles ordinary detention or transportation might constitute kidnapping when driven by an illicit motive. Moreover, the inclusion of exemplary judgments and rulings from various courts transforms the analysis from purely theoretical to provide a clear depiction of the existing legal challenges in this domain.
Research Findings:
- Kidnapping is an absolute crime; its perpetration does not require a specific outcome; the mere commission of the criminal act suffices.
- This crime possesses three distinct elements: first, a material act such as abduction or concealment; second, the perpetrator’s knowledge and intent; and third, a criminal motive such as revenge or extortion.
- A clear distinction between kidnapping and some similar offenses, such as unlawful detention or human trafficking, is lacking, leading to conflicts in categorizing the criminal offense in courts.
- The amendment to Article 621 in the new law solely addresses the classification of penalties, and indeed, aggravating circumstances, such as the victim’s age or the use of violence, remain in effect.
- An examination of issued rulings revealed that customary criteria, such as the distance of transportation or the severity of threats, have not been uniformly applied in courts, resulting in disparate judgments.
- Discrepancies in interpreting the role of motive and how the act is attributed to the direct perpetrator or instigator are among the challenges in accurately comprehending this crime.
The objective of this article is to establish a clearer framework for the precise identification of kidnapping and to propose solutions for resolving existing disagreements in legal theory and practice within the country.
Chapter One: Theoretical and Legal Foundations
1.1 Definition of Kidnapping in Iranian Law
Generally, various definitions of kidnapping have been offered. According to some, kidnapping refers to an act in which an individual, without the consent of the person concerned, forcibly, through threat, or deception, transfers them from one place to another (Jafari Langroudi, Mohammad Jafar, 2014, p. 17). In other definitions, some have interpreted kidnapping as: unlawfully and without their consent or will, gaining control over another individual and transferring them from one location to another (Goldouzian, Iraj, 2019, p. 324). Or, kidnapping is considered to mean the taking or abducting of any human being, with any intent, whether through the use of force or without it (Al-Baalbaki, 2002, p. 96). However, from a comprehensive and legal perspective, undoubtedly none of the above definitions are without flaws, as they have not thoroughly sifted all aspects of the crime of kidnapping from a legal viewpoint. Given Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996 (amended on 2020/05/12), which states: “Whoever, with the intent to demand money or property, or with the intent of revenge, or for any other purpose, by force or threat or deceit or by any other means, personally or through another, abducts or conceals a person, if the commission of the crime is by force or threat, shall be sentenced to imprisonment of grade four, and otherwise, to imprisonment of grade five. If the victim is under fifteen full years of age, or the abduction is carried out by means of vehicles, or physical or reputational harm is inflicted upon the victim, the perpetrator shall be sentenced to the maximum prescribed punishment, and in case of committing other crimes, shall also be sentenced to the punishment for that crime,” kidnapping can be defined as follows: kidnapping is the abduction or concealment of an individual without their consent and with malicious intent, such as revenge or extortion, carried out through force, threat, deceit, or any other method, directly or indirectly.
1.2. Material, Spiritual (Mental), and Legal Elements of Kidnapping in Iranian Law
A: Perpetrator’s Conduct and Subject Matter of the Crime
Based on Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, as amended in 2020, the perpetrator’s conduct includes two instances: abduction and concealment, and the subject matter of the crime is a living human being. It should be stated that the essence of kidnapping in all its forms and manifestations is the restriction of freedom of movement and passage, and the prevention thereof. Regarding the word “abduct” in the said article, although this word indicates the realization of this crime through displacement, however, considering that the essence of this offense is the prevention of individuals’ right to free movement, it can be concluded that the realization of kidnapping does not merely require abduction, and it can also be achieved by detaining individuals in a place without any displacement (Aghaee-Nia, Hossein, 2020, p. 197). Of course, some, in opposition to this view, consider abduction to be a prerequisite for kidnapping and deem kidnapping without abduction and merely by concealment as not achievable (Mohammadkhani, Abbas, 2024, p. 165).
According to some other authors, concealment refers to the abduction or hiding of the victim, for example, placing the person in the trunk of a car and abducting them, or concealing the person after abduction. Based on the argument presented, in the first case of committing kidnapping through concealment, the perpetrator should only be punished for kidnapping (Ahmadzadeh, Rasoul, 2024, pp. 173-174). In confirmation of the first view and rejection of other theories, it is necessary to mention this point: the respected legislator, while codifying kidnapping in the said article, stated it as: “Whoever abducts or conceals a person…” Considering the arguments of opponents regarding the impossibility of kidnapping without abduction or the overlap between these two, it must be admitted that if this were the case, there would be no need for the legislator’s explicit statement, because in any case, in the hypothesis of abduction and its applicability to the perpetrator’s act, kidnapping would already be realized, and there would be no need to ascertain concealment or non-concealment. It is better to interpret the concealment mentioned in the said article on the basis that the legislator has, in a way, included hostage-taking under kidnapping, which, given the lack of renewed criminalization of this important matter in Iranian laws and considering that the Islamic Republic of Iran has joined the 1979 International Convention against the Taking of Hostages, is consistent with reality. In order to distinguish concealment in kidnapping from the crime of unlawful detention, it must be stated that concealment with malicious intentions at the beginning of Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, as amended in 2020, falls under this article, and with other intentions, it falls under the heading of unlawful detention (Aghaee-Nia, Hossein, 2020, p. 200).
However, some jurists contend that classifying mere concealment as kidnapping leads to a conflation of two distinct offenses: unlawful detention and kidnapping (Mohammadkhani, Abbas, 2024, pp. 165-166). Nevertheless, in critical response to this argument, it can be asserted that disbelieving in the occurrence of kidnapping through concealment leads to the conflation of these two offenses. This is because, with such an interpretation, the word “concealment” in the article would generally and practically become redundant and futile, or it would open the door for judges’ personal interpretations. To reinforce the aforementioned view, it can be stated that for the realization of abduction, and generally, the extent of the place where the victim is located, whether small or large, has a customary criterion, meaning that the determination of whether abduction has occurred depends on common understanding (Saki, Mohammad Reza, 2022, p. 612). Given this, in cases where an individual displaces the victim by only a few meters for malicious purposes, it would not fall under the purview of kidnapping, and ultimately, they might be subject to the offense of unlawful detention, which carries a comparatively lesser penalty. This outcome is in complete contradiction to the impacts some actions leave behind.
B: Modus Operandi of Kidnapping
Based on Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, as amended in 2020, and with careful consideration of the explicit text of the said article which states: “Whoever personally or through another abducts or conceals a person…,” we understand that kidnapping can be realized through direct perpetration (mubasherat) and causation (tasbib). For instance: Person “A” stops in front of a boys’ school, and after the son of Mr. “J” (with whom the perpetrator has enmity) exits, the perpetrator personally puts the son in the car and abducts him. Or, Person “A” tells a taxi driver to pick up their child from the school at a certain time and deliver them to a specific location, and the taxi driver takes Mr. “J”‘s son and brings him to the said location. In this situation, some jurists believe that: the legislator here has considered the cause to be stronger than the direct perpetrator (sabab aqwa az mubasher), because if the legislator’s intention and import were to show severity towards complicity in this offense, it should have explicitly stated so. They cite complicity in corruption on earth (efsad fi al-ardh) or the subject of Article 584 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, as examples to support their claim. Furthermore, the argument of this group of jurists, despite these points, is that the phrase “through another…” was used to highlight the key role of the word “whoever” at the beginning of the article, and that here, “another” refers to a direct perpetrator who is not stronger than the cause. Also, attributing the crime to the cause and determining punishment for him, which indicates the cause’s greater strength, and also determining punishment for the cause due to the inability to attribute the crime to the direct perpetrator for personal reasons such as insanity, ignorance, or minority, all collectively assert that the legislator here was in the position of determining punishment for the cause stronger than the direct perpetrator, not an accomplice (Aghaee-Nia, Hossein, 2020, pp. 201-202). In contrast, others believe that: the legislator’s intention in the said article is the moral perpetrator (mubasher-e ma’navi), and in refuting the above view and strengthening their own, they state that attributing the crime to the cause when the direct perpetrator is incapacitated is a general principle and does not require explicit statement or reiteration. In this regard, this group intends to say that moral perpetration is a type of complicity that is the psychological cause of the crime, and the legislator, in some specific cases, treats their conduct as if they were the direct perpetrator of the crime. In other words, this group of jurists believes that in the case of kidnapping, the legislator intended to prescribe punishment for both the direct perpetrator and the moral perpetrator of the crime, and here, the crime is also attributed to the moral perpetrator, and the moral perpetrator is punishable when the crime is attributed to them (Mohammadkhani, Abbas, 2024, pp. 167-169). Now, to resolve the existing disagreement and provide a solution, it can be stated as follows: According to Article 526 of the Islamic Penal Code, approved in 2013, which states: “Whenever two or more agents, some through direct perpetration and some through causation, have had an impact on the occurrence of a crime, the agent to whom the crime is attributed is liable, and if the crime is attributed to all agents, they are equally liable unless the impact of the perpetrators’ conduct differs, in which case each is responsible to the extent of the impact of their conduct. If the direct perpetrator in the crime is involuntary, ignorant, an undiscerning minor, or insane, or similar, only the cause is liable.” Given this article, if a person abducts or conceals an individual through another, and if the committed crime is attributed to both of them, both are responsible, and if the crime is attributed only to the cause, then only the cause is liable. In other words, it can be better asserted that the moral perpetrator themselves, in accordance with this article, is considered a cause stronger than the direct perpetrator (Ahmadzadeh, Rasoul, 2023, p. 172).
C: Lack of Victim’s Consent and Its Various Forms:
One of the necessary and important conditions for the realization of the crime of kidnapping is the lack of the victim’s consent, and their consent is considered an impediment to the crime’s occurrence. The Iranian legislator, in Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996 and amended in 2020, implicitly addresses the lack of consent by stating: “…abducts or conceals a person by force or threat or deceit or by any other means…” In doing so, it has distanced itself from being confined to specific forms of non-consent by including “by any other means.” It is necessary to explain that “force” can be material, such as abducting the victim by tying their hands and feet, or immaterial, such as preventing a person from leaving their home and leading them voluntarily to their hiding place, albeit without their free will. It should be clarified that the commission of kidnapping through deceit, fraud, and trickery is also possible, for instance, when the perpetrator poses as a taxi driver and takes the victim to another place instead of their intended destination under the pretext of taking them there. However, it should be noted that force and threat are considered part of the crime’s structure only when applied to the victim, even if the victim is unable to comprehend it due to unconsciousness or other reasons (Aghaee-Nia, Hossein, 2020, pp. 202-205).
Regarding kidnapping through deception, an example cited by some authors is a boy’s promise of marriage to an unmarried girl, and then taking her into a car and abducting her. These authors argue that if the boy’s action involves trickery, then the girl’s non-consent is due to deception (Ahmadzadeh, Rasoul, 2023, p. 175). Conversely, some jurists, if the girl is sane and adult, do not consider this act to fall under kidnapping (Aghaee-Nia, Hossein, 2020, p. 203). In reality, the second viewpoint seems consistent with reality and principles, as a mere false promise cannot be considered a form of deception, and a sane and adult person should personally ascertain the consequences and truthfulness of an action before undertaking it. Otherwise, if the boy regrets it for any reason after fleeing, he would have to be prosecuted and punished for kidnapping, which is inconsistent with legal principles and the presumption of innocence.
Mental Element in the Crime of Kidnapping
The mental element of kidnapping comprises two parts: knowledge of the subject matter and the perpetrator’s intent to abduct and conceal, as well as the existence of a motive.
As you know, the subject matter of the crime of kidnapping is the victim being alive. Thus, if someone abducts a dead person believing them to be alive, or is unaware of a child in a car during a car theft, or mistakenly abducts a dead person instead of a living one, kidnapping will not be realized. However, under certain circumstances, in some cases, their action may be considered an attempt to commit a crime. In addition to the perpetrator’s knowledge of the subject matter of the crime, their intent to commit kidnapping must also be established. The perpetrator’s intent here refers to their will to abduct or conceal the person. For example, if an individual discovers a child in a car during a car theft, but their intent is to leave the child in a suitable place along the way, then the individual lacks the intent to abduct (Aghaee-Nia, Hossein, 2020, pp. 205-206). By referring to the beginning of Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996 and amended in 2020, it can be understood that the legislator has considered motive as an inseparable part of the mental element of this crime. Given the illustrative examples provided at the beginning of the article, it can be inferred that the legislator’s aim was to address malicious motives, such as those listed at the beginning of the article, and through these examples, to differentiate honorable and non-malicious motives from kidnapping. However, distinguishing honorable motives from malicious ones does not mean that the perpetrators are not prosecuted and punished. In such cases, where the perpetrator or perpetrators have an honorable motive, they can be convicted and punished under the title of unlawful detention. By referring to previous laws, especially Article 202 of the General Penal Code of 1973, it can also be concluded that the legislator’s intent regarding motive was malicious motive, and the omission of the word “malicious” from the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, can be attributed to negligence. This is because, if one believes in prosecuting and punishing individuals regardless of their motive, then there can be no distinction between concealment in kidnapping and concealment in unlawful detention (Ibid., pp. 206-209). However, some jurists believe that motive does not affect the crime of kidnapping and argue that motive can only be a factor in mitigating or aggravating punishment (Goldouzian, Iraj, Annotated Islamic Penal Code, 3rd ed., 7th print, Majd Publications, Tehran, p. 358).
Distinguishing Kidnapping from Similar Crimes
A) Unlawful Detention
From a legal perspective, unlawful detention refers to the illegal deprivation of another person’s freedom of movement for a relatively short period, usually not exceeding twenty-four hours. The unlawful apprehension and detention of individuals, similar to kidnapping, result in the deprivation of personal liberty, and for this reason and some others, it resembles kidnapping. However, these two offenses have differences that can be understood by separating the legal elements of unlawful detention and kidnapping. Unlawful detention has two legal elements, found in Articles 575 and 583 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996. The difference between unlawful detention in Article 575 and the crime of kidnapping is quite clear because the perpetrator of the offense under Article 575 is judicial authorities and competent officers, whereas kidnapping is usually committed by ordinary individuals. Also, kidnapping is realized through the material act of abduction, but this crime, through the issuance of orders and warrants, and also unlawful detention under this article, may ultimately not even lead to the detention of the individual, such as when a person is released on bail and not detained at all, which is not the case with the crime of kidnapping. On the other hand, the crime of kidnapping is generally carried out in secret, but the crime under Article 575 may be carried out publicly. Regarding the subject of Article 583, however, given that the crime under this article can also be committed by ordinary individuals, we may face a conflation of titles. This is because the concealment under this article aligns with the subject of kidnapping and requires differentiation. In this regard, it should be noted that the crime under Article 583 can be considered as the deprivation of personal liberty in the course of enforcing the law, even though it is illegal. Furthermore, the phrases in Article 583, which are: (“arrest – detention – imprisonment”), are customarily considered distinct from kidnapping (Shariati, Hassan, A Comparative Study of Kidnapping and Similar Crimes in Iranian Law, 2014, pp. 12-14). However, in this regard, we still encounter difficulty in distinguishing the concealment under this article from kidnapping. For this purpose, the best solution is to differentiate between these two cases based on the motive for committing the act. If the concealment is with malicious motives, the subject should be considered kidnapping, and if not, depending on the circumstances, it should be considered unlawful detention under Article 583 (Aghaee-Nia, Hossein, 1999, pp. 206-207).
B) Human Trafficking
The term “Qachaq” (trafficking/smuggling) has its roots in the Turkish word “qaçmak,” meaning to escape, flee, or emigrate. “Qachaq” is used both as a verbal noun (masdar) and as a noun denoting an instrument (esm-e alat). In its verbal noun sense, “Qachaq” means: performing an act contrary to law in a clandestine manner; and in its instrumental noun sense, it refers to goods whose trade or entry into the country is prohibited (Habibzadeh, Mohammad Jafar, Moghaddasi, Mohammad Bagher, Dolatabadi, Abbas, Human Trafficking in Iranian Criminal Law, Scientific-Research Article, Journal of Comparative Legal Researches, Winter 2009, Vol. 13, No. 4, p. 103).
Article 1 of the Law on Combating Human Trafficking, approved on July 19, 2004, defines human trafficking as follows:
“Human trafficking means:
A – The exiting or entering or transit of an individual or individuals, legally or illegally, across the country’s borders, by force, coercion, threat, deceit, trickery, or by abusing one’s power or position, or by abusing the situation of the said individual or individuals, with the intent of prostitution, organ harvesting, slavery, and marriage.
B – Receiving, transferring, concealing, or facilitating the concealment of an individual or individuals subject to paragraph (A) of this Article after crossing the border with the same purpose.”
Article 2 of this law also states: “The following acts are considered ‘human trafficking’:
A – Forming or managing a group or organization whose purpose is to carry out the matters subject to Article (1) of this Law.
B – Transporting (exiting, entering, or transiting), carrying, or transferring, legally or illegally, an individual or individuals in an organized manner for prostitution or other purposes subject to Article (1) of this Law, even with their consent. C – Transporting (exiting, entering, or transiting), carrying, or illegally transferring individuals for the purpose of prostitution, even with their consent.”
Both criminal behaviors mentioned in Articles (1) and (2) of this law manifest in the performance of a positive act (Ahmadzadeh, Rasoul, 2023, pp. 218-219).
Regarding the difference between this crime and the crime of kidnapping, it must be stated that: human trafficking is often an organized crime. The victims of this crime are generally individuals who have lost control over their lives in any way and succumb to slavery, etc. Also, psychological pressure and coercion are often observed in the victims of this crime. In this crime, victims, upon reaching their destination (the traffickers’ intended location), are generally exploited by the perpetrators, and this crime primarily has a profit-making aspect for the perpetrators. In human trafficking, the primary targets are women and children (Saki, Mohammad Reza, 2022, p. 624). In human trafficking, in some cases, such as trafficking for prostitution and organized trafficking, even the victim’s consent is not a condition (Ahmadzadeh, Rasoul, 2023, p. 220). In contrast, the crime of kidnapping is generally not organized, and a specific social stratum is not the intended target of the perpetrator, nor does it include individuals who have lost control of their lives, etc. Furthermore, in all cases, the victim’s consent is the main condition for the aforementioned crime.
In other words, human trafficking is a new and modern form of slavery (Shariati, Hassan, 2014, p. 15).
C) Child Abduction (of a newborn)
According to Article 631 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996 (amended fine in 2024): “Anyone who abducts or conceals a newborn child, or represents him as the child of another or as belonging to a woman other than the child’s mother, shall be sentenced to six months to three years of imprisonment. If it is proven that the said child was dead, the perpetrator shall be sentenced to a fine of 13,200,000 to 50,000,000 Rials.”
Regarding the connection between this crime and the crime of kidnapping under Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, it must be stated that this crime is exclusively for newborns and must be interpreted and construed within the scope and limits of this article. Given that the commission of this crime does not require specific malicious intent or motive, it cannot negate the crime of kidnapping under Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996. Thus, if the crime of child abduction is committed with malicious intent, it may fall under Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996 (Aghaee-Nia, Hossein, 2020, pp. 223-224). However, it should be noted that this article applies only to newborn children and, in common parlance, should be considered a newly born individual. It seems that only newborns a few days old and up to a maximum of one month fall under this article, and newborns older than one month are excluded from this article (Ahmadzadeh, Rasoul, 2023, p. 193).
D) Hostage-taking
According to Article 1 of the International Convention against the Taking of Hostages, adopted on December 17, 1979, to which the Iranian government has acceded: “1. Any person who seizes or detains and threatens to kill, injure or continue to detain another person (hereinafter referred to as the ‘hostage’) in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage, commits the offense of hostage-taking within the meaning of this Convention.”
Regarding the distinction between the crime of kidnapping and the crime of hostage-taking, it must be said that the crime of hostage-taking primarily concerns states and is therefore also considered a war crime, whereas the crime of kidnapping is considered a category of ordinary crimes. On the other hand, the crime of hostage-taking usually occurs in wartime and armed conflicts, and its perpetrators are generally non-combatants, whereas the crime of kidnapping, while not limited to a specific time for its occurrence, its perpetrators can be military or civilian. Furthermore, hostage-takers use individuals as a guarantee to achieve their demands and always intend to release them, an intention that is not proven or evident in the crime of kidnapping (Habibzadeh, Jafar, Article on the Crime of Kidnapping in Iranian Law, Monthly Magazine No. 44, Eighth Year, June and July 2004). In a general view, it can be said that the crime of hostage-taking primarily occurs with political motives, but the motive in the crime of kidnapping varies depending on the circumstances. However, hostage-taking has not been criminalized in Iranian law despite Iran’s accession to the relevant convention. This may be due to an oversight by the legislator in this matter, or it may be because, given the legislator’s reference to concealment in Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, the esteemed legislator believed that hostage-taking is criminalized in Iranian law, and with the establishment of a specific and malicious motive and the commission of acts indicative of hostage-taking, hostage-takers would be punished under the same article.
Chapter Two: Review of Legislative Developments
2.1. Analysis of Article 621 of the Islamic Penal Code, Discretionary Punishments Section, Approved in 1996
Kidnapping, in all its forms, i.e., abduction and concealment, is an absolute and continuous crime; thus, the achievement of a result in kidnapping is not a condition (Aghaee-Nia, Hossein, 2020, p. 198). To consider a crime continuous, one must examine the possibility of the continuation of the criminal behavior, in such a way that its potential for continuity is assessed based on its nature and essence. With these interpretations, given the possibility of the continuation of abduction over time in the crime of kidnapping, it must be said that kidnapping is among the continuous crimes (Mohammadkhani, Abbas, 2024, pp. 171-172). Of course, accepting the continuous nature of the crime of kidnapping is more acceptable in this way: if we consider this crime as continuous, regarding the statute of limitations, its interruption begins from the moment the continuity is interrupted, or in other words, access to the kidnapper or the victim, or the release of the victim, begins. If this crime were considered instantaneous, the statute of limitations would begin from the moment of abduction, which could be an escape route for perpetrators, contrary to the accepted criminal policy for this offense. In this regard, if we consider the crime of kidnapping as a continuous crime, the possibility of self-defense for the victim exists at all times, but if it is considered instantaneous, this is not possible (Aghaee-Nia, Hossein, 2020, p. 199). Also, kidnapping consists of two parts: concealment and abduction, the first of which is continuous in all cases. Given that it is not possible to imagine two simultaneous instantaneous and continuous states for a crime, it must be acknowledged that the legislator himself has strived for the crime of kidnapping to be considered a continuous crime. In light of these points, the opposing view of some jurists who claim that kidnapping is an instantaneous crime is null and void (Goldouzian, Iraj, Essentials of Special Criminal Law (1,2,3), First Edition, p. 11, Mizan Publications, 2009).
Before the approval of the Law on Reducing Discretionary Imprisonment Sentences in 2020, kidnapping was defined as: “Anyone who, with the intention of demanding money or property, or with the intention of revenge, or for any other purpose, by force, threat, deception, or in any other way, personally or through another, abducts or conceals a person, shall be sentenced to imprisonment from five to fifteen years. If the victim’s age is less than fifteen full years, or the abduction is carried out by means of a vehicle, or physical or reputational harm is inflicted on the victim, the perpetrator shall be sentenced to the maximum determined punishment, and in case of committing other crimes, he shall also be sentenced to the punishment for that crime.” Now, after the approval of the Law on Reducing Discretionary Imprisonment Sentences in 2020, significant changes were made to Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, in such a way that, according to paragraph (B) of Article 1 of this law: “The imprisonment sentence, subject to Article (621) of the law, if the commission of the crime is by force or threat, shall be grade four imprisonment, and otherwise, grade five imprisonment.” And also, according to paragraph (P) of Article 1 of this law: “The note to Article 621 of the law is abrogated, and in case of its attempt, it shall be dealt with in accordance with Article (122) of the Islamic Penal Code approved on April 21, 2013.”
Now, considering these amendments, according to Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, with the 2020 amendment, kidnapping is defined as: “Anyone who, with the intention of demanding money or property, or with the intention of revenge, or for any other purpose, by force, threat, deception, or in any other way, personally or through another, abducts or conceals a person, if the commission of the crime is by force or threat, shall be sentenced to grade four imprisonment, and otherwise, grade five imprisonment. If the victim’s age is less than fifteen full years, or the abduction is carried out by means of a vehicle, or physical or reputational harm is inflicted on the victim, the perpetrator shall be sentenced to the maximum determined punishment, and in case of committing other crimes, he shall also be sentenced to the punishment for that crime.”
We have provided detailed explanations regarding kidnapping in the first section under the constituent elements of this crime. Now, we will provide a brief analysis and summary of this crime here and avoid prolixity.
The material element of this crime includes two instances: abduction and concealment. This is because the essence of this crime is the obstruction of freedom of movement, which alone is not achieved by abduction. Concealing a person in a specific location under certain conditions can also lead to the commission of this offense in the case of concealing the victim. According to Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, with the 2020 amendment, this crime can be committed either directly or through causation. In other words, the legislator has considered the instigator, if the crime is attributed to them, to be in the same position as the direct perpetrator. Furthermore, the victim’s characteristics, such as gender, criminal record, or kinship by blood or marriage, do not prevent the commission of this crime; only the victim’s age, if less than 15 years, is a ground for aggravating it. Lack of consent is a fundamental requirement of this crime, and the manner of its deprivation is not important according to the aforementioned law. Thus, the specific form of abduction is not important to the legislator; rather, the legislator’s basis is the victim’s lack of consent and its deprivation by any possible means. However, if the manner of kidnapping is by force or threat, it is a ground for aggravating the punishment, specifically by increasing the degree of the punishment. The spiritual element of this crime also includes general malicious intent, meaning the perpetrator’s knowledge and intention. That is, the perpetrator must know that the person is alive and also intend to abduct them. This, along with malicious motives such as those mentioned at the beginning of the article, can be factors in the realization and completion of the spiritual element of this offense (Aghaee-Nia, Hossein, 2020, pp. 197-208).
2.2. Impact of the Law on Reducing Discretionary Imprisonment Sentences (2020) on this Crime
Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, with the 2020 amendment, regardless of aggravating circumstances and qualities, is divided into two parts: the commission of the material act by force and threat, and other means such as deception, etc. For the first two cases, grade 4 imprisonment is prescribed, and for the latter cases, grade 5 imprisonment (Khodadadi, Masoumeh, Majidi, Seyed Mahmoud, Criminal Policy of Iran and France Regarding the Crime of Kidnapping, 2022, pp. 211-239, p. 226, International Biannual Journal of Judicial Research, Vol. 3, No. 6).
Now, an important question that needs to be answered is whether, given the 2020 amendments, the aggravating circumstances under Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, namely the age condition (victim under 18 years), have been removed and abrogated or not?
Some jurists, in response to this question, argue that the philosophy of enacting the reduction law, as its name suggests, cannot lead to an increase in aggravating factors for this crime. Consequently, they envision two states for the crime of kidnapping: 1) kidnapping with force and threat, and 2) kidnapping by any other means except these two. They believe that the perpetrator who commits kidnapping with force and threat is subject to grade 4 discretionary imprisonment, and in cases of kidnapping by deception, trickery, etc., is subject to grade 5 imprisonment (Aghaee-Nia, Hossein, 2020, pp. 211-213). However, other jurists disagree with the aforementioned view, arguing, firstly, that if the legislator intended to abrogate the aggravating circumstances under Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, they should have explicitly abrogated them, just as paragraph (P) of Article 1 of the reduction law explicitly abrogated the note to Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996. Secondly, the principle is non-abrogation, and in case of doubt about abrogation or non-abrogation, one should adhere to non-abrogation and the continued existence of the law. Consequently, they still consider the aggravating circumstances related to kidnapping under the said article to be valid. However, this group of jurists considers the aggravating circumstances to apply to the abductor and not to the concealer (Mohammadkhani, Abbas, 2024, pp. 175-176). Between these two views, the second view seems more correct and realistic because the legislator only revised the main punishment for the crime of kidnapping. Also, initially, before the legislator approved it, kidnapping by force and threat was punishable by grade six imprisonment, which the Guardian Council rejected due to disproportionate crime and punishment (Ahmadzadeh, Rasoul, 2023, p. 188). Therefore, if kidnapping is by force and threat, the determined imprisonment is grade four, and otherwise, grade five. If the victim’s age is less than 15 years, or if the perpetrator suffers reputational or physical harm, depending on the case, if force and threat are present, the maximum grade four imprisonment will be determined, and otherwise, the maximum grade five imprisonment will be determined (Khodadadi, Masoumeh, Majidi, Seyed Mahmoud, 2022, p. 226).
Regarding the last clause of Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, with the 2020 amendment, which states: “and in case of committing other crimes, he shall also be sentenced to the punishment for that crime,” some jurists believe that if kidnapping is accompanied by the commission of other intentional crimes or if it is similar to other crimes, except for those explicitly stated in the text of the article itself, such as threat, the provisions for multiple offenses are not applied, and we must adhere to the accumulation of punishments (Mohammadkhani, Abbas, 2024, pp. 180-181). However, it should be noted that the mention of this at the end of the article is to prevent interference between the committed crimes, and in this case, we should proceed with the provisions for multiple offenses, and the commission of, for example, a threat in the context of kidnapping should not be considered subject to the provisions for multiple offenses (Ahmadzadeh, Rasoul, 2024, p. 187).
Regarding complicity in the crime of kidnapping, it should initially be noted that an accomplice is someone who, without intervening in the execution of the punishment, intentionally encourages the direct perpetrator to commit the crime or facilitates the commission of the crime through their behavior (Ardabili, Mohammad Ali, 2019, p. 53). The idea that the legislator, in Article 621 of the Islamic Penal Code, Discretionary Punishments Section, approved in 1996, intended to treat an accomplice as a direct perpetrator and punish the accomplice like a direct perpetrator is not a correct view. This is because, according to some legal articles, such as Article 286 of the Islamic Penal Code approved in 2013, Hadd Section, regarding the crime of “corruption on earth,” it is observed that whenever the legislator intended to aggravate the punishment of an accomplice and equalize the punishment of an accomplice and a direct perpetrator, they explicitly stated it, but regarding kidnapping, there is no explicit mention of this matter. It seems that the legislator in this regard intended to express the cause as stronger than the direct perpetrator, or the attribution of the crime to the direct perpetrator and the cause equally. When, for example, person (A) encourages person (B) to commit kidnapping, there is no doubt that person (A) is considered an accomplice (Aghaee-Nia, Hossein, 2020, pp. 201-202). Of course, some also believe that the legislator punishes the hirer, who is in a way an accomplice in the crime, with the punishment of the direct perpetrator here, and in other words, they are of the opinion that the legislator’s goal was to aggravate the punishment of the accomplice. This view is subject to rejection given the first view, because the punishment is applied based on the attribution of the crime, and when the crime is attributed to the hirer and the direct perpetrator, in such a way that this is conventionally approved, the punishment is again applied equally, and there is no need for this distinction (Ahmadzadeh, Rasoul, 2024, pp. 171-173).
Chapter Three: Analysis of Judicial Precedent
3.1. Review of Several Rulings Issued by Iranian Criminal Courts
1: According to Verdict No. 9409970220900156, person (A) forcibly removed the female victim from a car, dragged her violently to a tree about 50 meters away, and intended to assault her. During this, person (B), who was a friend of person (A), prevented another individual from assisting the victim. Both were prosecuted following the victim’s complaint. Person (A) was convicted of kidnapping, based on the argument that the crime of kidnapping is realized simply by the perpetrator gaining control over the victim and moving them from the location, even if only a few meters. Person (B) was convicted as an accomplice to kidnapping for facilitating the crime by preventing someone from assisting the victim. This verdict was ultimately upheld by the esteemed Court of Appeals.
2: In Verdict No. 9409970223400434, the plaintiff, by arrangement, went to a private office for a financial transaction. Upon arrival, he was assaulted, forced to write a receipt for 2 billion Rials, and then taken to another house, where he was to be released the next day at noon. The court convicted the first defendant for unlawful detention, obtaining a document by force and threat, illegal acquisition of property, insult, and intentional assault and battery. The second defendant was convicted for illegal acquisition of property. Regarding the crime of kidnapping, the court, considering that the plaintiff came to the location voluntarily and then left under duress, first, found doubt in the use of force and threat and the impossibility of hearing due to the crowded location, the presence of a police booth nearby, taking a private taxi to the destination requested by the defendants, and the lack of a request for help from the taxi driver. Secondly, the court considered the plaintiff’s voluntary presence and the impossibility of his voluntary departure as unlawful detention and acquitted the defendants of kidnapping and complicity in it. This verdict was ultimately upheld by the esteemed Court of Appeals.
3: According to Verdict No. 9409970269600845, the defendant handcuffed and shackled the plaintiff and took him to the police station with an arrest warrant. Citing the warrant, the defendant demanded its execution. After investigations at the public prosecutor’s office, the prosecutor considered the act unlawful detention and referred the case to the court. The esteemed court, considering that an act is deemed unlawful detention if it deprives individuals of their freedom temporarily, short-term, or long-term, and also that the deprivation of liberty should not occur after the abduction, and given that the defendant took the plaintiff from one place to another by deception and trickery, amended the charge from unlawful detention to kidnapping and convicted the defendant of the latter offense. The case was sent to the Court of Appeals after an appeal, and the esteemed Court of Appeals, arguing that the contents of the verdict do not appear to be contrary to law, again changed the charge from kidnapping to unlawful detention.
4: According to Verdict No. 9409972886300492, the defendant picked up a woman in his car, with two other passengers. After the two passengers disembarked, the defendant turned in another direction, which was met with the woman’s protest. In response, the driver pulled the plaintiff’s hair, struck her, and told her, “I have something to do with you, and you must be my friend.” When turning onto another unknown road, the plaintiff jumped out of the car. The court, considering the defendant’s actions, the inappropriate language used by him, and his three previous similar offenses, concluded that all these actions indicated the perpetrator’s intent to rape, and that the plaintiff, upon realizing this, threw herself to the ground. Based on witness testimonies, the use of the plaintiff’s mobile phone left in the defendant’s car, and the defendant’s use of it to trap another victim, the court considered the perpetrator’s actions as an attempt to kidnap and issued a verdict of conviction for the offense of attempted kidnapping. This verdict was upheld by the esteemed Court of Appeals with only minor changes in the punishment under the same charges as the trial court.
5: According to Verdict No. 9309982100300352, the plaintiff got into a car carrying four passengers, all of whom were intoxicated. After boarding, the plaintiff, observing their condition, requested to exit the vehicle. The defendants then covered the plaintiff’s mouth and throat and threatened her. A police patrol intervened and arrested them, and the plaintiff filed a complaint against all of them at the time. However, the plaintiff did not appear in court, and the trial court convicted the defendants for alcohol consumption but acquitted them of the kidnapping charge. Upon appeal by the prosecutor, the Court of Appeals overturned the verdict and issued a ruling convicting the defendants of attempted kidnapping.
6: According to Verdict No. 9409983661000845, the defendant, early in the morning, had exited his broken-down Isuzu truck when he noticed an 8-year-old girl passing by. He asked her to press the gas pedal with her hand, then led her into the truck with the intent of committing an indecent act. After the girl’s father filed a complaint and the perpetrator was identified through a face-to-face recognition process, the defendant initially stated that his truck had broken down on the day of the incident and that he had asked the girl to press the gas pedal. He then admitted to rubbing himself against her from behind and suggested that the semen stains on her clothing might have been due to his morning ejaculation. Later, in court, he denied the charges, even the encounter with the girl, and claimed his confessions were the result of torture. After investigations, the Criminal Court of First Instance sentenced him to imprisonment and lashes for kidnapping and indecent acts. The case was referred back to the same court by the Supreme Court for reconsideration due to procedural flaws, and the court upheld the original verdict. However, upon appeal by the defendant’s lawyer, the Supreme Court overturned the verdict, ruling that the defendant had no prior intent to engage with the girl and did not move her after boarding the truck. The case was then sent to a parallel court for further review.
7: According to another verdict, No. 9509970910500261, dated 21/04/2016, a 13-year-old boy went to a store to make a purchase. On his way home, a person stopped him, assaulted him, and threatened him with a knife, forcing him into a house where the perpetrator committed sodomy with him. The defendant initially claimed that he had previously observed others touching the boy’s back in a park and had then asked the boy to come to his house to sign a contract. The boy, despite being scared, was taken to the house, where the defendant committed anal intercourse with him. During the trial, the defendant denied the charges, claiming his confessions were coerced by officers and promises of leniency. He changed his statement, alleging that the boy had filed the complaint because he was rejected from a football team and knew the defendant’s house from a previous visit where he had delivered items. The defendant admitted to slapping the boy for refusing to sign contracts but claimed the boy had only come to the doorstep and not entered the house. The Criminal Court of First Instance, regardless of its findings on other charges, sentenced the defendant to 15 years imprisonment for kidnapping and 2 years imprisonment plus 74 lashes for threatening with a knife. Ultimately, the Supreme Court upheld the verdict but removed the charge of threatening with a knife, as it was deemed a preliminary act to the kidnapping.
8: Based on Verdict No. 9509970908400300, dated 18/05/1395, according to the plaintiff’s statements, the defendant approached a 16-year-old boy who was also their neighbor in a park and asked him to come to their house to help move a refrigerator. The boy initially refused. Then, according to the plaintiff’s statements, the defendant hugged him and forcibly took him to his house, engaged in unlawful acts with him, and threatened to reveal the assault. The defendant was later arrested after fleeing, and throughout the proceedings, he denied the charges. The plaintiff showed unconditional forgiveness and requested the case be dismissed. The investigation on the charge of possessing military equipment (discovery of a bulletproof vest during a search of his house, later revealed that the defendant was an employee of a security company) and the illegal suspension order was issued. The prosecutor agreed with the first charge but believed the defendant should be brought to trial for kidnapping, leading to a detention order. After referral to the First Criminal Court, regardless of the sentence for other charges, the court convicted the defendant of kidnapping to 15 years and one month imprisonment. Upon appeal by the defendant’s lawyer, the Supreme Court, reasoning that the defendant denied the charges and that the kidnapping occurred in a park in front of many witnesses, considering the possibility of assistance and the forensic opinion indicating no signs of assault on the victim’s body, overturned the initial verdict.
3.2. Analysis of the Challenges Faced by Judges in Kidnapping Cases
Based on the issued rulings, it is observed that the primary disagreements among honorable judges in proving kidnapping revolve around the precise delineation between kidnapping and similar offenses, particularly the crime of unlawful detention, as well as the lack of clear distinction between a completed crime and an attempted crime. Additionally, it is noted that in a few rulings, judges mistakenly consider kidnapping as an instantaneous crime and the abduction as its result. Below, we will analyze each of these issues.
In Ruling No. 1, the court erroneously regarded kidnapping as an instantaneous crime requiring a result and treated an attempted kidnapping as a completed crime.
As previously mentioned, kidnapping, in all its forms – whether abduction or concealment – is a continuous and absolute crime. Its mental element (mens rea) includes the general intent (dolus generalis) of the perpetrator, encompassing knowledge and intent regarding the victim being alive and the will to commit kidnapping, while lacking specific intent (dolus specialis) but considering the perpetrator’s malicious motive (Aghaeinia, Hossein, 2020, pp. 197 and 206). Furthermore, to affirm the continuous nature of kidnapping, it can be argued that since every abduction inherently involves deprivation of personal liberty, the deprivation of liberty and abduction are inseparable. Thus, the deprivation of liberty cannot be considered a result of kidnapping, as argued in Ruling No. 1, nor can kidnapping be regarded as a crime leading to a result. Moreover, continuous crimes are all categorized as absolute crimes, and from this perspective, kidnapping cannot be considered a continuous crime leading to a result (Mohammadkhani, Abbas, 2024, pp. 172–173).
However, some legal scholars hold a contrary view, considering kidnapping an instantaneous crime. At the beginning of the article, a comprehensive rebuttal of this perspective was provided, eliminating the need for repetition (Mirmohammad Sadeghi, Hossein, Crimes Against Persons, 26th ed., Tehran: Mizan, 2018, p. 568).
As is known, the term “abduction” in kidnapping refers to the displacement or transfer of a person from one point or place to another. According to this definition, even a minimal transfer of the victim could be considered kidnapping. However, given that kidnapping is one of the most conventional crimes, this seems erroneous. In kidnapping, the extent of the victim’s displacement must be significant enough for conventional standards to recognize it as abduction, where the victim is perceived as “taken” or “stolen” by societal norms. Minimal transfers should not be regarded as kidnapping (Mohammadkhani, Abbas, 2024, p. 166).
In the aforementioned ruling, the honorable court considered even a slight transfer of the victim as constituting a completed kidnapping, which, given the conventional approach to kidnapping, is somewhat incorrect. Ruling No. 4 clearly demonstrates that a minimal transfer of the victim can only be classified as an attempted crime, not a completed one. This contradicts Ruling No. 1, which is fundamentally flawed.
Some legal scholars argue that an attempted kidnapping occurs when the crime is discovered during the abduction and the process is halted (Goldouzian, Iraj, 2004, Special Criminal Law: Crimes Against Physical Integrity and Moral Personality, p. 231).
The definition of an attempted crime can be stated as follows: “An attempted crime consists of acts that demonstrate the perpetrator’s criminal intent to pursue and complete the crime, such that, barring external interference, the crime would be fully realized” (Sanei, Parviz, General Criminal Law, Vol. 1, 4th ed., Tehran: Ganj-e Danesh Publications, 1992, p. 277).
Under this definition, it can even be argued that the perpetrator did not commit an attempted kidnapping, as the minimal transfer of the victim was intended for assault. Consequently, the perpetrator’s actions could be examined under other legal headings, and the accomplice should likewise be prosecuted and punished in accordance with the principal perpetrator’s charges, i.e., complicity, under the relevant conditions.
As discussed, the main flaws in the judicial practice regarding kidnapping include:
- The failure to properly distinguish between kidnapping and similar crimes.
- The lack of differentiation between an attempted crime and a completed kidnapping.
- The failure to ascertain the nature and method of threats or coercion, which affect the victim’s consent.
It is imperative to understand that, as a general principle, victim consent does not justify any offense. However, when consent constitutes an essential element of a crime, its presence precludes the crime’s occurrence (Noorbaha, Reza, Foundations of General Criminal Law, 1st ed., Tehran: Center Bar Association Publications, 1990, p. 228). It should be noted that wherever force, threats, deceit, fraud, and similar terms are mentioned as conditions for the realization of an offense, they implicitly reflect the impact of consent on the legal element of the crime (Rahmani, Hamid, Kidnapping in Iranian Law, 2008, Master’s Thesis in Criminal Law and Criminology, University of Mazandaran, p. 92).
Nonetheless, it is crucial to recognize that, in criminal law, offenses directly affecting the human body and person are generally not nullified by consent; in other words, an individual’s consent does not prevent their commission. The converse applies to property crimes, where the legislator’s intent is to protect individuals’ proprietary domains. Consequently, if an individual consents to the violation of this domain, the legislator accepts such consent. Theoretically, kidnapping and unlawful detention should fall into the former category. However, given that the legislator’s objective is to protect freedom of movement and prevent its impediment – a right enshrined in the Constitution – the legislator permits individuals to waive this right through their consent (Azmayesh, Ali, Lecture Notes on Special Criminal Law 1, University of Qom Publications, Academic Year 1995-1996, p. 25).
Our legislator, concerning the role of consent in kidnapping, unlike some other offenses, has not oversimplified the matter. By explicitly stating “…abducts or conceals a person by force, threat, deception, or any other means…”, the legislator has deemed the specific form of non-consent insignificant. In essence, any form of non-consent on the victim’s part is considered a prerequisite, and the core principle and foundation are once again rooted in non-consent, thereby transcending the confines of the specific form of abduction (Aghaeinia, Hossein, 2020, pp. 202-203). For instance, an individual might be so disoriented that they willingly accompany abductors to a desired location; in such a scenario, kidnapping is still deemed to have occurred.
Considering these interpretations, we can critically evaluate Ruling No. 8, in which the Supreme Court overturned the verdict based on arguments related to the environment’s remoteness and the possibility of seeking help. Similarly, Ruling No. 2, where the lower court, considering the crowded environment and the presence of a police booth, affirmed victim consent in the abduction and transfer, warrants scrutiny. The extent and intensity of the perpetrators’ actions on the victim should have been assessed, taking into account the circumstances of both the perpetrators and the victims. For example, a victim might be so terrified by the perpetrators’ threats that they are utterly unable to seek assistance. In such a case, this inability must be attributed to non-consent, and the mere existence of conditions allowing for seeking help or the victim’s failure to seek help cannot solely be interpreted as consent.
On occasion, judges err in proving and identifying malicious intent. As stated previously, the assessment of malicious intent must be guided by customary and legal standards, as some actions, though outwardly legitimate, are considered illegitimate from customary and legal perspectives (Ibid., p. 207). Ruling No. 3 exemplifies this point, where the defendant, under the pretext of possessing an arrest warrant, unilaterally arrested an individual. This action, while seemingly legitimate, is legally and customarily illegitimate and serves as a clear instance of malicious intent.
Regarding the precise demarcation between kidnapping and similar offenses, particularly unlawful detention, legal doctrine exhibits considerable disagreement, and this divergence is strikingly evident in judicial practice
As previously stated, some legal scholars are of the opinion that kidnapping is solely accomplished through abduction, and they consider concealment to be a part of kidnapping only when it occurs after the abduction of the victim (Aqamohammadkhani, Abbas, 2024, pp. 170-171). However, other legal scholars believe that concealment alone can fall under the scope of kidnapping, but they advocate for this interpretation only when the concealment is accompanied by the malicious motives stipulated in Article 621 of the Islamic Penal Code, Discretionary Punishments Section, enacted in 1996 (Aghaeinia, Hossein, 2020, p. 197). It appears that adopting the second perspective allows for a more precise delineation between kidnapping and unlawful detention, as judicial practice has occasionally sought this clarity. For instance, in Ruling No. 5, the lower court considered the perpetrator’s act of concealment as kidnapping and consequently convicted the accused. While the aforementioned ruling did not explicitly state that the conviction was based on the concealment provision of Article 621 of the Islamic Penal Code, Discretionary Punishments Section, enacted in 1996, this can be fully inferred from the issued verdict.
Conclusion
A comprehensive legal analysis and examination of judicial precedents reveal that despite its relative clarity in statutory text, the crime of kidnapping faces interpretive ambiguities in practice. The inclusion of terms like “concealment” alongside “abduction,” while potentially broadening the scope of the law, has simultaneously led to diverse and occasionally contradictory interpretations in rulings. It is evident that consensus regarding the requisite extent of displacement, the methodology for establishing consent or coercion, and the discernment of criminal intent profoundly influences judicial decisions.
The amendments introduced in the Law on Reducing Imprisonment Penalties introduced a more graded approach but did not fundamentally alter the crime’s legal structure. Therefore, there is a clear and pressing need for more transparent guidelines and specialized training for judges concerning the boundaries between this crime and similar offenses.
Ultimately, to enhance clarity and mitigate judicial error, it is imperative for the legislator to move towards a more systematic approach in diagnosing this crime through a meticulous revision of legal phrasing and the promulgation of guiding rules for judges. Failing to do so, the risks emanating from divergent interpretations will not only imperil the rights of the accused and the victim but also undermine the credibility of criminal justice.
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