The Quarterly Journal of Judicial Law Views

The Quarterly Journal of Judicial Law Views

Transparency of Law Principle and its Position in the European Court of Human Rights Procedure and Iranian Criminal Law

Authors
Hassanali Moazenzadegan
Hamed Rahdarpour
Allametabatba`i University
Abstract
Abstract
Making transparent and unambiguous laws is one of the requirements of good governance and consequences of “rule of law”. The necessity of making such laws as Transparency of Law principle is one of the important elements of “the quality of the law principle”. This is a post legality principle which is derived from European court of human rights Procedure which has practised for a considerable time and has assured rights of subjects of law against the legislator and lawmakers. In spite of recognizing transparency of law principles in judgments of European Court of Human Rights and its direct effects on restriction of liberties, has been neglected in Iran; Because the quality of law principle has not been recognize in Iranian law.” The silence of the Constitution to guarantee such principle, has paved the way for making ambiguous criminal laws due to different substantial and procedural reasons. Lack of attention to requirements of law transparency especially in legislation process, has not only deprived Iranian citizens from legal guarantees against ambiguous legislation, but also it has practically helped legislators to determine and design strategies of jurisprudential sources referred to in principle 167 of the Constitution in order to make the ambiguity transparent; a solution which is against itself and finally leads to a new challenge to the current ambiguity.
Keywords
Keywords: The quality of law
Transparency of law principle
European Court of Human Rights
principle 167 of the Constitution
Article 220 of Islamic penal Code
Allio, Lorenzo (2007), Better Regulation and Impact Assessment in the European Commission, in: Regulatory Impact Assessment, Edward Elgar Publishing.
De Francesco, Fabrizio; Radaelli, Claudio (2007), Indicators of Regulatory Quality, in: Regulatory Impact Assessment, Edward Elgar Publishing.
Dennis, Ian (1997), The critical condition of criminal law, in: Current Legal Problems, Volume 50, Issue 1, 1 January 1997, Pages 213–249 .
Eliescu, M. (1967), Civil law enforcement in time and space, conflict of laws in Treaty of civil law, Vol.I, General part, by Tr. Ionascu and pthers, Academiei publishing house, Bucharest.
Harriman, David Bruce (1953), The Void for Vagueness Rule in California, California Law Review, Volume 41, Issue 3.
Hamburger, Philip (2014), Is Administrative Law Unlawfully?, University of Chicago press.
Ioan Vida (1994), Action of legal rule in time, in: Magazine Dreptul no. 12 .
Lupe, Nicola; Piccirilli, Giovanni (2012), European Court of Human Rights and the Quality of legislation: Shifting to a substantial concept of law? Legisprudence, volume 6, Issue 2.
Mihai Constantinescu, Radu Mareş (1999), Principle of non-retroactivity of the law in case of decisions of the Constitutional Court, in the Magazine Dreptul no. 11.
Popescu; Ciora; Tandareanu (2008), Practical aspect of legislative technique and situation, official Gazette publishing House.
Predescu, Ion; Safta, Marieta (2013), the principle of legal certainty, Basis for the rule of law, Landmark Case – Law.
Robinson, William (2014), Making EU Legislation Clearer, European Journal of Law Reform, 2014, (16),3.
Sunday Times V. United Kingdom, 1979.
Rekvenyi, V. Hungary, 1999.
Steel and others V. United Kingdom, 2013.
C.R. V. United Kingdom, 1995.
SW&CR. V. United Kingdom, 1995.
Chorherr V. Austria, 1992.
Damman V. Switzerland, 2005.
K-H.M. V. Germany, 2001.
Rotaru V. Romania, 2000.
Kafkaris v. Cyprus, 2008.
Regina V. R(marital Rape exemption), 1991.
Ziliberberg V. Moldova, 2005.
Kudrevicius and others V. Lithuania, 2015.
Vasiliauskas, V. Lithvania, 2015.
Marcks, V. Belgium, 1979.
Brumarescu, . Romanin, 2000.
Dragotoniu and Militaru- Pidhorni, V. Romania, 2007.
Case C-381/97, Belgocodex; Collection, 1998.
Lanzetta v. New Jersey, 306 U.S. 451, 1939.
Edelman v. California, 344 U.S. 357, 1953.
Papachristou v. City of Jacksonville, 405 U.S. 156, 1972.