اجرای مجازات حبس در محل اقامت محکوم‌علیه براساس حقوق ایران و موازین حقوق بشری

Although convicts have committed a crime and must serve their sentence according to the law, respecting their human dignity is an important and crucial issue. Anything that does not comply with this basic principle is considered a violation of human rights rules. Execution of imprisonment in residence place of the convict, in criminal contexts and issues and primarily in civil cases, is viewed nowadays as a human "right" for convicts. Although such did not exist in the past; however, with relation to human rights rules and principles in the domestic laws of countries, the residence of convicts and the place of execution of the sentence have found a thematic link. Of course, it cannot be claimed that this is a valid custom in international law or a regulation in international treaties and instruments. The existing document in this regard is the resolution adopted in 1988 by the United Nations General Assembly, which, considering the nature of this body's resolutions, is a non-binding document. Regardless of the nature of this document and its impact, as said even if this resolution did not exist, this issue could have been inferred from the general principles governing human rights regulations, including the principle of dignity. The Iranian legislator had paid attention to this issue before approving the new Criminal Procedure Code (2013); but in terms of its nature, the case was similar to a privilege, and of course its limits and content were not clearly defined. However, in Note 3 of Article 315 of the aforementioned law, the legislator has considered the issue in the form of a mandatory law. Accordingly, the will of the prisoner is not involved in the matter and the cost of the transfer is the responsibility of the state. The issue is whether there is a conflict in, on the one hand, considering the above provision to be mandatory and the will of the convicted person not to be effective in it, and on the other hand, considering it to be one of the examples of human rights. It seems that not only is there no conflict between these two matters aforementioned; Rather, the current Iranian law has taken an important step towards reducing the harm caused by the execution of imprisonment on the convicted and his family, which is a matter in keeping with the rights of prisoners. Despite this, the above provision has gaps, which sometimes require immediate action by the legislator to explain and clarify. To explain more the legislator has considered the civil and traditional concept of residence, which is contained in Article 1002 of the Civil Code. However, considering the specific situation of the prisoner, the residence of the prisoner should be defined with his family. Also, the word corrupt in this article can lead to extensive interpretations. By exploring the relevant claims, the issue can be deduced. Although, theoretically, the punishment of imprisonment in the aforementioned collection was not regarded as a coherent response to the occurrence of a crime (or sin). In other side, imprisonment has been considered in specific and limited cases. Therefore, due to the exceptional status of this punishment, its implementation should be limited as much as possible and in cases of implementation, the severity of its harm should be reduced. On the other hand, with due regard to the claimed words mentioned, the effect of each person’s sin (punishment) should be imposed on himself as much as possible. By implementing the imprisonment sentence in a place other than the place of residence of the convicted person, in fact, the people around the convicted person, including his/her family, are more harmed and the effects of the imprisonment sentence, in other than the aforementioned situation, also affect them.