Iranian Journal of Medical Ethics and History of Medicine

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Moazenzadegan H, Rahdarpour H. Rethinking Article 495 of the Islamic Penal Code (the Liability of Physician) Based on the Emerging “Quality of Law” Principle . IJMEHM 2018; 11 :14-25
URL: http://ijme.tums.ac.ir/article-1-5989-en.html

Since 1984, criminal law more than any other period has been specified under the framework of human rights and consequently limited based on its principal. It was followed by the emergence of a new approach called “quality of law principle”. In criminal law, which was presented by European Court of Human Rights for the first time then in the content of verdicts issued by this international judicial institute and reconsideration of criminal law legality principle, it has developed and become more consistent with social justice and manners. According to this principle, the qualitative law is a law which is consistent with quality elements of law based on human rights and moral principles. It is interesting to note that lack of each requirement voids the related law and according to Court’s case law, the existence of such law would not be different from lack of law. In present paper, through the investigation of physician liability and focus on article 495 of Islamic Penal Code as the key to legislation in this regard, and given the requirements of quality of law principle, it has been concluded that the above mentioned provision and all other articles related to this context are not consistent with elements of “the Quality of Law”, thus with failure to meet the minimum criteria of justice, social morality and human rights, the law fails to have the required quality and consequently, it is recommended to legislate based on the criteria of Quality of Law.