Editor in chief’s note

It is surprising that flowers still smell good

By the publication of the first copy of “ judgment” magazine, we welcomed to the different ideas and opinions of the colleagues and it is necessary to appreciate all the great and encouragers. It is sure that we need the scholar’s opinions to complete and continue the way. Within announced points of view. The written note of Mr. Khosravi the educated editorial of legal magazine (published by the administration of justice), has been chosen from the received points of view and published as the editorial of this copy in this month.

Mr. Mohammad Resa Zandi – the educated editorial of the judgment bulletin.

Today is the last week of the eleventh month of the year 1380, and we keep exactly a distance of 135 years from the day when the first publication of the justice administration called “ Vaghayeh Adliyeh”. It shows that this administration has been on good terms with the difficult job of publication from the beginning. But, certainly you know that ‘Vaghayeh Adliyeh “ has been many falling and rising steps to pass through the dangerous passage of the adventurous history for about one and half centuries and reaches to our age, and has frequently had sunrises and sunsets and lastly, it found calm from Farvardin, 1338 with the name “ the legal magazine of the justice administration” and it has still been continuing. But the quarterly of the legal magazine which is published once each three months, is like a sun which rises only four days in a year, and it is clear that we should think of a light by which we can light up the dark days of the year. Now, this light has been lit up by your hands, therefor I congratulate you and the one who is in charge of the bulletin.

1- I know the publication of each paper, bulletin or magazine, by each legal or natural person, as a cultural activity and appreciate it. Each note, for the reason that it is permanent, should be acceptable and defensible. So, the writers are explicit and sincere and they respect people, history and truth. This is a cultural activity. It means that when you write something, in which you regard the things that when you speak, you don’t regard them. On one hand, the activities of a ministerial organization is always full of secrets from people’s point of view .The publication of a bulletin by the governmental institutions, with whatever intention for which it is published, acts as a mediator to clarify (show) the hidden adventures of that institution, and it means a cultural activity. As a mediator, between people and the judges, by the clarifying of people’s opinion for the judge and vice-versa you, make the path smooth for these two to communicate. This is a path, which is not possible to pass through without a mediator. So, if the Ghezavat magazine not as a faithful (loyal) and reliable messenger, it can play an outstanding cultural and historical role, which will be appreciated in future.

2- I admire the from, size, title, use of pictures, and the arrangement which you have provided for the magazine and suggest you to continue it. You won’t limit the contents of Ghezavat just to the Tehran justice administration’s internal reports. I am sure that the reflection of the judges opinions, ideas and expectations, showing the expectations and the problems of the employees, reintroducing of the responsibilities, the organization and even the characters and also, the reflection of the people’s complaint and statements about the justice administration of Tehran, showing statistics on the interviewing, organizing the conferences and so on are the duties which save the magazine from drawing in a marsh as an internal bulletin.

 3- I think that “ Ghezavat “, can be a sample for the other provinces of the country. It is right that each province publishes a magazine (monthly, quarterly,…) with the same name (added to the name of the province), to show the activities of the province and also be a basis for the reflection of the ideas, opinions and the foreign exchange for the people in that area. Moreover, it is right to send the publication to other legal administrations to provide Polly – dimensional relation. The judiciary intends to do the same of course in a more extensive level. Anyway, every effort done by judiciary doesn’t mean to negate the regional cultural activities

At the end, I wish you to improve the job that you have begun.

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A selection of latest Legal approvals

The cession of exchange contracts to the Melli Bank of Iran approved in 36.12.24 doesn’t include the concluded “foreign exchange contracts”. The Inquiring low, article (1) and (13) of the export and import roles approved in 1372.

The subject of inquiring:

 Single article – with the existence of article  (1) and (13) of the export and import rules approved in 1372 .7. 4, could the exporters of the non – oil goods be prosecuted and punished from the date of the approval of the mentioned law up to now by virtue of articles (5) and (7) about the cession of exchange contracts to the Melli Bank of Iran approved in 1336.12.24?

The parliament opinion:

The concluded exchange contracts before the approval date of export and import rules in 1372.7.4, must still fallow the rules of conclusion’s time. The contracts which have been concluded after the approval of the above-mentioned law, will not be under the Rule of cession of Exchange contracts to Melli Bank.

The foreign exchange contracts based on the rules mentioned in the article (6) of the law about enforcement way of “ discretionary punishment awarded by the judge ” about the smuggled goods and foreign exchange approved in 1374.2.12 by the Expending discretion council of the regime; fallow the related rules.

The above law includes a single article that has been approved in an open session in 1378.4.17 by the Islamic council assembly and the Guardian council has confirmed it in 1380/4/27.

The validity of the budget law for a year will not expire at the end of that year

It’s understanding from a precedent award, the validity of the approved rules in the Budget Law is just for the same year, but, according to the modification to the note (78) in the budget Law of the year 1363 which was approved in the year 1380, it is understood that the discovery resulted from the precedent award No (64676/6/30) is not correct and the legislator doesn’t mean that the Law is valid just for one year.

The modification Law of the note (78) in the general budget Law of the year 1363:

Single article- From the time when the Law of the third economic, social and cultural development program in Islamic Republic of Iran is enforceable, the following text replaces the note (78) of the Budget Law in 1363:

- All of the circular letters, instructions and the changes in the organization, the changes in the table coefficients.

The member of the executing, organizing, financial, administrative, supplying and service committee, maximum 75000 Rials

M - accountant, administrative incumbent, supplying incumbent and carrier, maximum 27000 Rials

N - bookkeeper, typist, driver and other service and executive agents, maximum 2500 Rials

O - transportation urban areas, maximum 5000 Rials

P - the food expenses of the executive agents in the clauses (A), (B), (G), (D), (H), (V), (Z), (L), (M),

 Maximum 5000 Rials

Note - The number of the questions which must be completed by each statistician and the daily volume of work in other mentioned classification, are determined and announced by the statistic center of Iran according to the conditions of performing and geographic program and also the amount of the payment maximum to the sums mentioned in the article.

Article 5 ) – The employees, who use the advantages of the regulations, can not use mission fare, overtime work allowance and similar titles to perform the activities mentioned in the regulations. 

The minister’s permission is not necessary

Regarding to use the staff quarters, more than 5 years, it is not necessary to obtain the related minister’s permission.

In the article 3 of the by – Law related to the conditions for using staff quarters approved in 1363, the maximum period for using the staff quarters is 5 years, and it was determined that after expiring the mentioned period, the users are obliged to evacuate the flats within 3 months from the date of the notification of the organization.

But it has been allowed in specific cases to give an extension to use for more 3 years (just for one time) with the condition of the organization chief’s recognition about its essentiality and the governor general and the minister’s confirmation thereof. The cabinet approved in 80/6/11 that the minister’s permission is not necessary for the users.

Occupational consultation, and job seeking without special permission is an offense

Having an employment and occupational consultation with out license is an offense. 

 The present criminal policy apparently is resulted from the development of the criminal interference. In 1380, we witness a new kind of criminal action. If a person gives occupational consultation without the license of “the ministry of labor and social affairs”, he is offender and will be punished according to the rules of this law. Of course, mentioning of such a statement in the law is arguable if there isn’t more severe punishment in other laws.

The Law of the punishment for having an employment office and consulting without license

Single article – Just people who have license from “the ministry of labor and social affairs” can have employment office and give occupational consultation according to the executive regulations of the law.

Note 1 - Infraction of the social rules is an offense and if no severe punishment has been regulated in other rules, according to the judgment, in addition to the compensation of the financial loss in each time, the offender must pay a cash fine of 10 million Rials for the first time, in case of repeating, 50 million Rials for the second time and 100 million Rials for the third time.

Note 2 – Each year the activity rate of the non-governmental employment and job-consulting offices is determined according to the suggestion of the ministry of labor and social affairs after the approval of the cabinet.

Non governmental employment and job consulting offices which have license of the ministry of labor and social affairs are obliged to comply the mentioned tariffs and the rules of the performing regulations.

Note 3  - The amount of the mentioned cash fines in the note (1) is announced by the Central Bank of Islamic Republic of Iran, and it increases once in each three years according to the suggestion of the ministry of labor and social affairs and the approval of the cabinet.

Note 4 - Within maximum two months from the date of the approval of this law, its executive by – Law will be provided by the ministry of labor and social affairs and approved by the cabinet.

The above law which includes a single article and four notes has been approved by the Islamic council assembly in an open session on Tuesday dated 1380.7.10 and confirmed by the Guardian council in 1380.7.25.

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The by – law of the human rights commission in the judiciary

The basis of formation of the human right commission in the judiciary is its supervising duty in judiciary.

It is about a year that a commission has been formed in the office of the judiciary inter national offers with the presence of the representatives of justice administration, revolution tribunal, foreign ministry, information ministry, general inspectorate organization and prison organization. They have had several meetings regarding to received letters from abroad. The writers of the letters have delivered their complaints to the national and non-government human rights entities and the United Nation Organization. They studied the letters in several sessions in order to answer them deliberately, reasonably and respecting diplomatic behavior.

 In the continuation of there meetings, it was decided to provide the executive by-law and a legal basis in the judiciary organization for this action indeed. The mentioned by-law was studied and argued in the commission in details. The way of answering is very important because giving a reply to the governmental and non-government organized (N-G-O) is in fact the state’s reply, and the conviction of Islamic Republic in the intentioned affairs for the breach of the human rights backs to the whole state. Therefor, it was considered in choosing the commission members but in the final regulated by law, the judiciary was in charge of the main duty  and other organizations can participate in this commission as invitees. Now we review the seven articles of the mentioned by –law.

The human rights commission by law

The explanatory introduction:

According to the principle 156 Constitution Law, the judiciary “supports the social and individual rights and is in charge to achieve justice, to restore the general law and to extend lawful liberty.

In reliance on “ The Islamic content of Iran revolution which is a movement for the victory of all the oppressed against the oppressor” (see the introduction of the constitution law), and the inspiration of dynamic and live Shiite’s law, and “the continuous Islamic jurisprudence by the Islamic jurists” (principle (2), article (6), section (a), The Constitution Law has codified the “ nation rights” in other principles specially in the principles 19-42. These regulations which maybe called “people’s basic rights”, “ nation rights” or “ human rights” include some principles that have been extracted from the true Islamic resources at the beginning of Islam and Islamic civilization centuries before the Declaration of Human Rights.

Also, The Constitution Law has tried (as the Islamic Republic covenant) to protect “the people rights in the Islamic movement line” by “ the establishment of a judicial system based on the Islamic justice and composed of just judges who are familiar to the exact religion standards”, and to prevent ” the local (positioned) deviations within the Islamic nation”. (See the introduction of the Constitution Law).

The judiciary in performing its supervision duty must anticipate the required and suitable measures and performed them on time.

At the present situation of the world, the related discussions on “the nation rights” have changed in such a way that the lack of related mechanism has put the countries in a defensive position, and introduces a country which defend human rights as a country which violates them.

The understanding of such a fact has caused different countries to establish some institutions in order to examine the problems of human rights. Obviously, when the greatest human rights violators are trying to establish such institutions as the human rights defenders, it is necessary to establish a national institution in Iran which is the most severe and serious human rights defenders. The judiciary in performing its duties is surely in charge of such institution and must try to “extend justice and lawful liberty” by forming coordination between applicable organizations. It should adopt an active position against the human rights breach inside and outside of the country and examine the problems and claims related to the nation rights violence inside the country and in reliance on the Constitution Law and enlightening Islamic resources, it should repel the accusations, and in order to protect the Islamic system, try to increase the esteem of the Islamic Republic of Iran among the nations and the states.

The fundamentals and duties of the human right commission:

Article 1 – Fundamentals

The human right commission will be composed of main and secretariat members.

Article 2- Main members

·  The judiciary international affairs undersecretary

·  The judicial undersecretary of the judiciary

·  The judiciary social affairs and informative undersecretary

·  The judiciary spokesman

·  Tehran justice administration

·  The general inspectorate organization

·  Prison organization and training and security performances

·  The central office of the judicial development studies

·  The supreme tribunal representative

·  The attorney – general representative

The foreign ministry, the information ministry, the interior ministry of their fully-authorized representatives and one of the judicial commission members of the Islamic council Assembly will be invited to participate in the commission meetings.

Article 3 - The invited members

1.The secretary of the commission can invite the organizations, institutions and clear-sighted persons to participate the meetings according to a special case or the members’ majority of votes.

Article 4 – Secretariat

2.The secretariat commission is in charge of performing administrative affairs, determining the agenda, arranging the process-verbal, coordinating the sessions and following-up the correspondences. Also it will organize the archives and collect the inquired human rights records.

1. The members will be informed of the received claims in the first session. The commission secretary can inquire about the subject to get the reply of the related references. In this way, they can give a suitable period to provide the reply in according to the importance of the subject.

4.The commission secretary will send his function report to the respectable chief of the judiciary once in six months. The report copies will also be sent to the organizations and ministries, which are the members of the commission.

5.The commission session maybe held with the judging chief presence if the case is important and essential.

Article 5 – The commission’s authorities, duties and competency

1.Compiling and introducing the Islamic human rights

2. The examining of the judicial rights related to the Islamic human rights and suggesting executive and suitable solutions based on Islamic Republic of Iran’s laws by the formation of a committee composed of the clear-sighted persons from the judiciary and the university.

3.The examining of the resolutions issued by the UN human rights committee and the reports of the specific reporters and giving suggestion and report to the respectable chief of the judiciary and examining the complaints and claims about the breach of human rights in Iran which are brought up by legal and natural persons.

4.Recognizing the human rights breach cases in other countries specially the arrogant regimes and announcing a suitable-position against them.

5.Choosing united policy and coordinating the replies and defending the accusations, which are brought out, against the Islamic Republic of Iran.

6.The recognition and introducing of suitable persons to the judiciary chief for attending in the related international meetings and associations.

7.The examining of the complaints and claims which are right based on the Islamic Republic of Iran’s laws and giving report to the judiciary chief for getting required decision.

8.Poviding suitable replies to the claims and objections which are brought-out for different political and non-political motives or for the lack of familiarity with the Islamic Republic of Iran’s laws and regulations.

9.Giving reports to the respectable chief of the judiciary about the requirements, shortages and problems of the internal and international areas (fields) and giving suggestions and executive operations to improve and extend the performances related to human rights.

10.Trying to cooperate and coordinate with other internal human right institutions to choose unique policy.

11.Pesforming required operations in other cases related to human rights according to the order of the judiciary chief.

Article 6- Forming the sessions

1.The commission chief is in charge of the sessions. He can appointed one of the members as the chief of the meetings.

2.The sessions will be in a formal state with the presence of the 2/3 of the members and the approved regulations are applicable by the relative majority of votes and after the judiciary chief’s confirmation.

3.For each session, a separated process-verbal is arranged and will be sent to the respectable chief of the judiciary.

4.The meetings will be held at least once a month.

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Article 7- Performing the by – law

1.The by-law was approved by the judiciary chief in seven articles in 1380.6.27. It will come to the force after sending a formal notice to the related organizations.

2.All of the judicial units (departments) and the organizations, which are dependents on the judicial system, are obliged to cooperate with the human right commission.

The modification of the executive by-law of “the annulation of documents and selling possessions, endowment properties

The cabinet approved the following by law in 1380.8.2 according to the suggestion of the president’s legal and parliamentary deputy based on the principle 138o of Islamic republic of Iran’s Constitution Law.

The executive by-law of the law of “the annulation of documents and selling of possession and endowment properties (the subject of the approval regulations No.12784 T/1146 dated in 1374.2.6 and 15320 T/44089 dated in 1375.6.12) is modified as below:

1.The article (2) of the mentioned by law is modified as below:

Article 2- The endowment and charitable administrations and the people who are in charge of the endowments are obliged to record the public endowments which have been sold (according to the registered documents) or have been made by people as their own, these records (included reasons and documents) most be sent to the endowment and charitable affair administrations.

The endowment organization informs the possessors of the endowments or other beneficiary (interested) persons. It also refers the subject to a commission composed of three clear-sighted Islamic jurists who are chosen by the representative of the religious leadership in the mentioned organization.

The mentioned commission announces its opinion about the religious permission of selling or changing the properties according to the documents presented by the endowment administration and the related administrator and also the beneficiary persons in endowments. If the selling or changing of the endowed property has been done with the religions permission (from the commission’s point of view), the transaction is confirmed, otherwise, the opinions of the religions leader’s representative and the chief of the endowment and charitable affair organization based on the annulation of the sale documents and changing the endowments are announced to “the office of lands and deeds registry” and the possessors or the beneficiary persons simultaneously. The office of deeds registry (bored on this decision) will annul the document in registered records and related registry offices, and will issue a new document for the endowment. Anyway, such a decision is objectionable in competent courts.

2.In the article (3) of the by law, the statement “within 30 days form the date of the endowment organization’s notification” is modified as ”within 30 days from the date of the seeing of the endowment organization’s letter”.

3.A note is attached to the article (3) of the by law as follows:

Note: During performing this law, the cases in which the farmers working on follow system are dispossessed, (in case of requests of the farmers), the Jihad agriculture ministry is obliged to hand over the existed favorable agricultural lands in the area to them, and if there aren’t such lands in the area, the agriculture ministry should and over the lands of other areas in compliance with the current laws and regulations and regarding the priorities.

4.The article (5) – part (B) – of the by-law is modified as below:

Whenever the endowment farming land have been handed over to the related farmers after transferring to the government by setting a formal document, for the document annulation or sale confirmation the article 2 of by-law will be culling.

5.The article (6) of the by law is modified as below:

Article 6 – After performing the cases mentioned in the article (5) parts (A) and (B), the endowment administrations for possessed endowments and administrators for the endowments which are under their administration, will next them to the possessors or farmers according to the content of by-law. The rental money is determined in proportionate to the subject of the lease and considering the possessors and farmers’ acquired rights based on the formal or local expert’s opinion.

6. (The article (6), note (4) of the by-law is modified as below:)

Note 4- If the agricultural endowments mentioned in the by-law are within the limits of civil services and their agricultural use is changeable or has changed, before any action about the separation of alienation of the lands, the acquired rights of the farmers working on follow system should be recognized and properly secured based on the opinion of the expert (who is acceptable by the two parties), or the experts who are chosen by the endowment administrations, or the administrators (according to the case) and the farmer working on follow system who are chosen by the endowment and charitable affair administration or the administrators. In the case of not reaching to an agreement and mutual consent in recognition and evaluation of the acquired rights, the subject is verified by the qualified judicial authorities (on the request of each side) and the farmers’ acquired rights are paid according to the court’s opinion. In the case of the alienation of the lands (which their application has changed), on the request of the farmer who is the owner of the land, the endowment administrations and the administrators are obliged to give priority to each farmer working on fallow system for renting a piece from the least separated piece of the same lands.

7.The following text is attached to the article (7) as the notes (4) and (5):

Note 4- In order to promote the culture of the endowments’ revival and exploitations and to encourage the farmers to continue farming on endowment land and to facilitate their farming operations, the banks and other credit institutions should choose a way (considering the related laws) to make it possible to give required financial facilities to the farmers of the endowment lands in such away that giving the bank facilities to these farmers should be without getting bond (pledge) or mortgage of a building site and it should just based on the use of standing property, getting promissory notes, farmers’ chained promissory notes from each other of the pledge of the transferred benefits by renting and the acquired rights resulted from it.

In the cases in which the banks give facilities to farmers with the pledge of standing property and acquired rights and want to secure their irrevocable claims be the benefits of the standing property and acquired rights related to endowment lands, the endowment administrations and the administrators of the endowed properties substitute the banks and credit institutes or the persons who are introduced by them instead of the indebted farmer in the lease documents.

Note 5 – In order to insure the welfare of the farmers working on follow system and to provide a field for more activity in the endowed lands, the endowment and charitable administrations and the administrators (according to the case), determine a period of 10 years to rent the lands to the farmers. In the lease contract, they put a clause that at the end of the mentioned time, the lease contract will be renewed with the mentioned farmer or his legal deputy based on the rent which is determined by the formal or local expert and considering the farmer’s acquired rights. In special cases that there are endowment interests or other special conditions, it is permitted to increase the term of lease for more than 10 years and with the permission of the endowment and charitable affair organization’s chief.

8.The article (8) of the by law and its note are modified as bellows

Article 8 – The farmers are allowed to establish any standing property and garden in the endowed farming arrangement, with obtaining permission of other related legal references and without paying share.

The lessees can register the established standing properties in the office of lands and deeds registry and receive ownership documents.

The establishment mortgages and pledges of such standing properties are permitted and it isn’t necessary to get the separated permission of the endowment and charitable administration or the administrators

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The quantity aims of judicial section

The council of ministers has determined the judicial section’s quantity aims and indexes, on the suggestion No.105/12282 – 319/2012 80.8.16, based on the principle 138. Although the mentioned indexes about the executive duties are suitable, it is obvious that the judiciary’s programmers should determine the quantity aims of the judiciary themselves. It should be mentioned that in the law of the third program for development in judicial section, four articles have been approved. The operation of two of them has been delayed until the approval of the instruction or by law by the judiciary. 20 months have passed but this duty hasn’t been done yet. The determination of the aims and programming themselves are another subjects. 

The precedent award 

1st) In the case that a person is convicted to pay cash fire, the time arrestment must be computed regarding 50000 Rials per each day of arrestment. This sum must be deducted from the cash fire.

In the note of article (18) of the Islamic punishment law, has clearly been mentioned that if the convicted person has been arrested before the date of judgment for the reason of convictions mentioned in his case, ------------- after determining the discretionary punishment awarded by the judge, the court deducts his previous time arrestment from the determined discretionary punishment or deterrent penalty. As it has been specified in the article, after determining the discretionary punishment awarded by the judge, (the discretionary punishment includes imprisonment, chip and cash fire), it is possible to deduct the time arrestment from the cash fire after the date of judgment (50000 Rials per day) because in the case of cash fire, it can be substituted by imprisonment. But in the case of judgment, if a person has already been arrested because of security, this calculation is impossible.

Some judges believed that this subject is just related to imprisonment, and if the final conviction is something other than the imprisonment, such a substitution isn’t correct. The precedent award No.654-80.7.10 specified that in the case of making award as pecuniary conviction, the time arrestment must be computed and deducted from the amount of cash fire.

The full bench of the supreme court’s vote (No.654-1380.7.10)

According to the note of article (18) of Islamic punishment law, the court is obliged to deduct the time arrestment of the convicted person in the existing case from the discretionary or deterrent punishments. For the reason that imprisonment and cash fire both are of the same kind (both of them are of discretionary and deterrent punishment), and nonexistence of computing the previous time arrestment is against the individuals’ rights and liberties, therefore, according to the mentioned note, the deduction of time arrestment from the cash fire, and its computing and substitution to cash fire is legal. According to the vote of the first martial court’s second branch in Fars, No.591, dated 1378.11.3 which conforms this idea and according to the members’ majority vote of the full bench of the supreme court, this judgment is correct and if is in conformity with the legal and religions scales. According to the article 270 of law of criminal procedure, this judgment is enforceable for the Supreme Court’s branches and the courts.

2nd)            Granting a grace period to pay cash fire is against the law.

In the article (1) of the procedures of pecuniary conviction

Law, the following rule has been issued about a person who denies paying the cash fire:

“ Each person who is convicted to pay cash fire according to the criminal court judgment and he doesn’t pay it or he doesn’t have any property other than excepted debt, according to the judge’s order who has issued the judgment, the person is arrested in return for the deduction of 50000 Rials per day.”

In this article, the judge has still authority) to issue a judgment) about cash fire. (Public Prosecutor or one who executed the judgment had already this authority.) In the article, it was emphasized on the searching property to pay cash fire or arresting the convicted person. Only the source, which has issued the arrestment order, has changed, and now the authority has been committed to the judge who has issued the judgment regarding the public court system.

(of course, with paying attention to the compression of court’s work it was suitable that the judgment executor himself performed it.) The determined sum in the law has also been added from 500 Rials to 50000 Rials and it is possible to change it once in three years based on the justice minister’s suggestion and the judiciary chief’s approval. The mentioned law rules over other cases such as not continuing the arrestment more than the maximum of legal punishment and not exceeding 5 years in offences whose legal punishment is 5 years or more.

Some believe that the mentioned article doesn’t indicate the alternation. The court must provide firstly the possibility of obtaining cash fire by searching on unclaimed property of the convicted person, secondly a judgment of imprisonment if there wasn’t any property other than the excepted debt.

The state representative expresses the following sentences in agreement with the article (1) in the open session No.213 of the assembly:

Pay attention! If a person is convicted to pay cash fire, in the first stage, people usually pay it so that they don’t go to prison. If there is a person who says: “ I go to prison but I don’t give my property” (I mean that he likes riches very much), in this case, the court is also permitted to sell the convicted person’s property (the excepted debt cases are exceptional) and obtain the state and nation’s property. The court has this right here

After the description of mentioned article, it was put to the vote. The majority of 182 persons, present in the assembly, agreed with the article (1) by standing up.

With paying attention to the state representative’s expressions and his emphasis on this statement that “ the court is permitted (not obliged)”, we can correctly conclude that the judge who has issued the judgment has authority to choose either sending the convicted person (who must pay cash fire) to prison of obtaining his property.

Note: It seems that it is better to apply this change considering the prisons’ present situation paying attention to the clear harms, extensive bad consignees and limited places of imprisonment. If it is really impossible to access to the convicted person’s property, he can be sent to the prison.

Note: It has been mentioned in the executive by-law of article (6) of the pecuniary conviction law’s procedures approved in 1377 that if a person who has been convicted to pay cash fire asks for an extension, the judgment executor can give him at most one month period of grace.

The judge who has issued the judgment can extend the period of grace up to (at most) two other months according to the losing party’s request and the judgment executor’s suggestion considering.

The losing party’s condition and situation, the amount of cash fire and other effective conditions. As it is understood from the logic of this executive by-law, the judiciary respectable ruling chief considers two judgment executors and it is against the clear criminal procedure law of public and revolution courts.

It has been mentioned in the article 281 that the court of firs instance which has issued the judgment or its deputy are in charge of the performing the judgment in any situation as the following articles describe.

The court, which has issued the judgment, is in charge of stopping in judgment performing or any other decision in performing.

According to the vote No.137-80.6.5, the High Administrative court canceled article 2 of the executive by-law, which includes permission to give a period of grace for paying cash fire.

In the constitution Law, the high administrative court which is dependent on and is appointed by the judiciary has been authorized to examine even the judiciary chief’s by-lows and approved regulation and cancel them when occasion arises.

Gibing such an authority to the high administrative court is one of the masterpieces of the constitution law.

The full courts vote No. (E/119/79-1380.6.5)

With paying attention to the urgent performance of the judicial resources’ criminal judgments and performing the determined punishments of the conviction, the article 2 of the executive by-law of the mentioned law approved in 1378 (includes a period of grace for paying cash fire) is against the law, because the mentioned judgment in article 1 of the procedures of pecuniary conviction law approved in 1377 includes permission giving a period of grace for paying cash fire and consequently it is not definite to delay in judgment performance.

Therefore it is cancelled according to the second part of article 25 of the High Administrative Court’s Law.

C

Delay in providing and approving detailed city maps can not deprive people of ownership rights and can not remove the municipality’s responsibility in issuance of license.

It has been mentioned in the law of determining the situation of properties which are situated in municipality and governmental plans approved in 1367 that all ministries, institutions, organizations, constitutions, governmental companies or the companies which are dependent or government or municipalities and the institutions which their names must be mentioned if the law is ruling them, are obliged to participate in public or developing plans which their performance are necessary according to the minister’s or high executive officer’s approved or announcement considering the related regulations.

These plans must be situated within the legal and canonical (religious) properties of natural or legal persons. They also must be situated inside the limit of the cities and their protective zones.

After the plan’s formal announcement, the above mentioned organizations must make (sign) a decisive contract, transfer the formal document and pay the price (or give its substitution) according to the related rules at most during 18 months from the date of the announcement.

In the case that the governmental institution or the municipality didn’t determine (clarify) its situation during 18 months, if the person asks for the issuance of license for a building, can the municipality deny to issue the license for the reason that the area belongs the communized property.

The full bench’s vote of the High Administrative Court is the answer of this question.

The vote of the full bench (No. H.S.S/383/79-80.6.11

The period of municipality prohibition of issuing license for establishing a building in the western lands of Kan flood channel has ended according to the rule approved in 1367.11.11 in article 5 commission of “ the establishment of high architectural and civil-engineering council law”.

Moreover, considering part 24-article 55 at municipality law, the municipality obligation to issue the building license in the can of lands which are situated within the civil limit, also, the regulations of determining the situation of properties situated in governmental and municipality plans approved in 1367 includes the confirmation of authority and performance of ownership right principle. Delay in providing and approving deterred map can not deprive people of performing ownership rights in a long or unlimited period. It also can not remove the municipality responsibility in issuance building license and legal use of ownership right. Therefore the court’s petition of first instance No.1146 dated 1375.8.25 in the branch 16 which has the same meaning, is in agreement with the legal principles and scales. Based on the recent part of the article 20 legal modification of High Administrative Court approved in 1378.2.1, this vote is enforceable for the court branches and other related resources in similar cases.

D

The high civil - engineering council can not prohibit the separation and alienation of lands, which are situated around the city limit in residence affairs

The Iran’s high civil engineering and architectural council has prohibited (in an announcement) the issuance of any separation permission and building license in farming lands and gardens which are situated around the cities and have approved plans. This rule is enforceable as long as the population impure density in other civil lands hasn’t reached to the impure density anticipated in the approved plan. This prohibition was against the article 99-part 2 and article 100 of the municipality law. The court cancelled the mentioned approved rule.

The full bench wrote (No.266/79-1380.7.21)

The specified statements mentioned in the articles 99-part 2,100 and 101 of the municipality law, the law of determining the situation of properties which are situated in governmental and municipality plans approved in 1367.8.29 and the article 19 of “ the civil land law” approved in 1366.6.22 which are related to the permission of performing (different) kinds of owner ship rights of the lands situated in protective zones and around the cities are applicable considering related regulations and rules.

Some of the above mentioned statements are the separation of gardens and farming lands, changing of the land application and their sail, municipality obligation to issue the necessary license. According to the mentioned aspects and paying attention to the authority and competence limit specified in article 2 of the Iran’s “ establishment of high civil-engineering and architecture council law approved in 1351 and parts 4&7 of the approved rule by the same council dated in 1378.8.10 which has prohibited the separation and alienation of the lands for residence affairs inside the territory and protective limits of the cities, also, the issuance of any separation permission and building licensee for farming lands and gardens situated in the city margin (as long as the population density reaches to the anticipated limit), the rule is against the law and it is beyond the limits of the council’s authority in constituting governmental regulations. So it is cancelled based on the article 25- second part of the High Administrative court law.

E

Arrestment by judicial resources is an abandonment of work example

One of the cases in which people are called to account by official misconduct committees is the absence and lack of presence in the place of work. Sometimes the workers or the employers are arrested and the arrestment is a judicial decision. This causes the arrested person not to continue his daily work. So he will be absent from his employer’s point of view. It is a kind of official misconduct, which causes the subject to be brought up in the official misconduct committee or the board of settlement of disputes between the worker and the employer. Now there is a question. Is the absent of a worker (who is arrested unwillingly and his absence isn’t according to his will) justified or not? The full bench vote of the High Administrative Court has tried to specify this doubt.

The full bench vote (No. 93&58180-1388.6.19)

Since the criminal conviction of persons subjected to the work law and their unemployment for the reason of judicial resources prosecution or toleration of decisive punishment are of instances of abandonment of work and they cause the cooperative relationship with the employer to be cut, therefore the (written) verdict No.385, dated in 1378.4.20, the branch 12 of the court in the classified case No.1158/77/12 is in agreement with the legal principles and scales to the extent that includes this meaning. Based on the recent part of the article 20 legal modification of High Administrative court approved in 1378.2.1, this vote is enforceable for the court branches and other related resources in similar cases.

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Special Report

Shahid Motahari Judicial Complex in one sight

Shahid Motahari judicial complex has been situated in south west of Tehran, Yaft-Abad area. From geographical aspect it is situated between Azadegan Boulevard and Saveh road on one side, and Azari forked road and Qazvin Street. On the other side it ends to Karaj road. Now, this judicial complex is 13 years old. This judicial complex coves the area, which has specific characteristics from the social aspects. The residents of this area are almost native and migratory people who are heterogeneous from the social point of view.

It is qualified that researchers and sociologist study this subject. Because, sometimes this heterogeneity causes some annoy.

Unfortunately, the judicial complex face works compression from judicial and administrative aspects. The work volume isn’t proportionate to the employees in these complexes. This problem causes the employees to do several works at the same time. It results in appearing error and decreasing accuracy in work. Shahid Motahari complex isn’t an exceptional in this subject. On the other hand, numerous factories and trade centers like Yaft-Abad and Iran markets have been settled in this area. The residents of this area are neighbors to these economic centers. This area seems as a commercial one. That’s why this complex is active in both criminal and legal dimensions, from quality and quantity point of view. It should be qualified to mention that this judicial complex has 17 branches for investigation. Six of branches examine civil cases and 11 of them verify criminal ones. There are 6500 cases in this judicial complex.

It should also be said that this complex enjoys suitable space and appearance from architecture and formal aspects.

The education average of the employees who work in administrative section is diploma, and of judicial personnel are BA and judicial expert. Generally, 27 judges and 140 clerks work in this complex 

Javad Sadeghi: We have quickened the punishment of social convicted persons. 

From ancient time up to now, justice has been the missing word of human societies. People are always seeking a shelter or safe place to vindicate their rights.

Generally, the judiciary is the most important institution to reach to this aim. Therefore, we are going to introduce Tehran judicial complexes in order to become familiar with the troubles and endeavors of the persons who are in charge of the judiciary. This time, we went to Shahid Motahari Judicial complex (Yaft-Abad) and listened to the respectable administrative and judicial personnel. Far from judicial problems and positions of respectable judges and administrative each person has a lot of speech and he is seeking a hearing ear to talk partly about the problems and its involved troubles. If you are just, you won’t be in doubt that our present society is very far from the society in which we can determine the real position of the judiciary. 

In the first step, we stated talking to Mr. Javad Sadeghi, Tehran Justice Administration Deputy and the acting manager of Shahid Motahari Judicial Complex. He has MA in judicial science and has worked for 36 year. In judicial affairs, he has been the acting head of the mentioned judicial complex for about 5 years.

1- One of the main problems in the judicial complexes’ difficulties is the lengthening of legal procedures, which causes public confidence deprival of the judiciary. What have you planned to solve this problem?

In this complex, we tried to examine the cases as soon as possible. So that different branches which verify the complaints in this complex, examine and issue judgment about them, some in 15 days and some in two months, according to the importance of the cases.

The extreme time for examining a case in this judicial complex is less than 4 months. (Of course it is true about the voluminous cases). On the other hand we tried to be sensitive about some cases and examine them sooner than their turns. Because Shahid Motahari judicial complex is situated in an area which has different texture from social aspect, and accept many emigrants. Sometimes this heterogeneity causes some anomy to appear. Therefore we have tried to quicken the punishment of social convicted persons to solve this problem. It requires serious and decisive clash with the bothering, which causes deprival of social calm. As an example we can refer to the cases related to people’s violation and other which is put to ladies and clash with the rascals and villians of the area. Thanks to God, it is felt that we have succeeded to bring a relative calm in people’s social life in this area.

2- Most of the clients refer to petition writers when they want to complain in a judicial complex. Paying attention to this fact that most of petition writers aren’t familiar with the legal expressions and basis, in most cases, may be the 

Complainant can not put his main intention and meaning in the content of the petition and plea. How did you deal with this subject?

This problem is related to all the judicial complexes. Of course it has been planned to solve this problem. A unit has been formed to supervise the petition writers’ work. Some forms have been provided which should be used for every complaint. These petition writers are under the control of “guidance and help unit.”

After referring to this unit, people are introduced to the petition writing section. In this way, we can prevent many people from misuse. Because, people report any infraction to the “guidance and help unit” as soon as they observe it. The unit will clash with any infraction.

3-In many cases, it is seen that the court appointed attorney acts in ceremonial form. Don’t you think that this matter causes the wasting of the convicted persons’ right?

Yes, it is true. Many courts appointed attorneys who don’t have any obligation to do their duties. This problem must be solved by the Bar Association. Anyway, the judicial complexes can’t take a suitable decision about this matter. The solution of this problem is related to the help and effort of the Bar Association.

4-There is no proportion between the administrative and executive personnel and the volume of their activities. So, it has brought about some problems in judicial affairs. How did you deal with this subject?

You referred to an important problem. The judicial centers face work compression from administrative and judicial aspects. This is not proportionate to the number of complexes’ employees in any way. On the other hand, we must try to solve people’s problems and do their affairs. Therefore, the judicial centers, with these low personnel, try to do their best. This problem causes the judicial complexes’ employees to do several works at the same time. Therefore accuracy in judicial affairs decreases and it causes mistakes to appear. The result of all these will be the spoiling of people’s rights. We should act basically to solve this problem. The programmers of the judicial affairs must solve this problem by a large and coordinated program. We can’t solve this problem in a short time.

5- Most of the clients try to solve their problems by internal relationships as soon as their entrance to the judicial complex. What is the reason of this subject in your opinion?

This is a problem that must be looked at more deeply and studied in larger level. It seems that solving problems based on the relationships, but not regulations is common in our society. We are facing this problem not only in judicial centers and complexes but also in administrative institutions. It should unfortunately be said that this problem has gotten the form of a public culture. Anyway, we can see that the clients, as soon as their entrance to the judicial centers and even during the examining at the case (when the case passes the procedures of the primitive research), bring some letters from higher centers and try to solve their problems. It is a public belief, which shows that the client is worried about the spoiling of his right. This blamed culture must gradually be taken away from people and it takes a long time. A deep cultural activity must be done in this field.

Specific Report

Ali-Akbar Bakhtiary – The chief of the branch 1014 understanding the important condition of a judge

Mr. Bakhtiary is a law expert and has worked as long as 20 years. He has been one of the chiefs of the Shahid Motahari complex’s judicial branch since 7 years ago.

1-One of the defending attorneys’ objections is that they believe that the attorney’s dignity (rank) isn’t protected when they refer to the judicial branches and sometimes the judge doesn’t accept the requests which are presented to the court by defending attorneys according to legal procedure. Do you accept this criticism?

To answer this question, it should be said that the enlightening religion of Islam has laid emphasis on the convicted person’s rights and the both parties’. It is natural in the court that the attorneys have their own specific positions. But the negative aspect of the above criticism is more related to the culture of attorneys themselves. If the attorneys themselves enter the judicial system correctly and defend the accused real rights, they can consequently help the judge to vindicate the rights.

In these conditions, both the court and the defending attorneys are the justice supporters. This culture can affect the society and will show its results and reflections. Therefore I think that the main part of this criticism is not acceptable. The dear themselves should modify their policy and vision with the common effort of the court and defending attorneys, the reality of the problems will be clear.

2-Paying attention to the crowded environment of the court and the increasing volume of the cases, the judge may naturally be influenced by the environment. (Don’t you think that) this problem may have some effect on the judicial issues?

Basically a judge like others is a human being. Of course he has some characteristics, which distinguishes him from other people of the society. But it must be considered that he may have some errors and mistakes. As God says in one of Koran verses, if we charge an individual to do something, which is beyond his ability, naturally he can’t do it. However, although the pressure of judges’ daily work is not a hidden matter, the respectable judges look at their duties as an obligation. Because, it is inevitable that people’s problems must be solved in any way. A large volume of cases and the lack of clients’ familiarity with taking an action cause that the court founds a huge number of cases, which must be examined. This subject has effect on issuing a judgment and we can’t deny it.

3-You were one of the founders of “ the fight against flagrant crimes” plan. The mentioned plan has had positive consequences after it was performed. Disregarding the fact that you have been one of the compilers of the mentioned plan, if you are asked how you criticize it, what will be your answer?

Having had a meeting with the respectable chief of the judiciary, he confirmed the plan. It was decided that a by-law is written for the plan. As the organizer of the lay-law, I believe that the plan by itself doesn’t have any obscurity and basic difficulty. The objections made on the plan by many jurists and judicial colleagues are more related the executive section. I also believe that we have some weaknesses in the executive section. We should admit that the courts enjoy weak possibilities from support and executing aspects. We must try to compensate this deficiency if we want to perform the plan successfully.

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Reza Nik-Khoo Monfared

The judge of the public court

Quality against Quantity

Mr. Nik-Khoo was a teacher before he entered the judicial organization. He started doing his duty as a judge since 1369. Now it is for 3 years that he works in Shahid Motahari judicial complex.

When I requested Nik-Khoo to talk about the problems and difficulties related to his colleagues, he answered: the first problem that the judges confront along a day is the pressure of the increasing work. This causes them not to have enough opportunity to study and research. A judge must have enough opportunity to study and refer to required resources in order to issue a judgment about the cases, which are referred to him. Each of the legal and criminal claims has a large sphere. Most of them are time-consuming, therefore most of the judges are forced to take the cases to their home to quicken the procedure of judgment issuance. They spent their leisure time to examine the case carefully. If there was enough opportunity, the judge could attribute his time to studying law books and during this time some books were studied.

We know that, judgment is a theoretical and mental affair. It needs practice. The judge must continuously access to the resources, and enjoy the new ideas and opinions. But if he can’t enjoy the existing opportunities, he naturally forgets most of his past knowledge too. He can just rely on his personal experiences, which is not qualified for an Islamic judgment.

Another judicial systems’ problem is the subject of statistics. Apparently, the quantity of cases, which are examined, is valued more than the quality. If it naturally, obviously we witness daily increasing of work compression in the courts. Some times, the examining of some cases takes just one hour and some 7 or 8 hours. But in the judicial system, these hours are evaluated by the same way. We can refer to many instances in this field. Unfortunately, this quantities causes judgment attention to be decreased. So, some of the judgments don’t enjoy required power and firmness. Therefore, they may be breached in next procedures that it causes the lengthening of examining the case. If the judge has enough time to examine the case more carefully and deeply, maybe he can remove the hostility between the parties. If the judge is going to attribute his leisure time to studying judicial cases, the persons who are in charge of these affairs should pay attention to the legal and financial aspects. It causes the judges to become hopeful (to continue the work)

In other part of the interview, Nik-Khoo talked about “ the renewed revival of the public prosecution’ plan (which is under investigation). He believes that the prosecution was omitted without careful studying and expertness. Also, the plan of its renewed revival doesn’t enjoy the required ripeness. In Nik-Khoo’s opinion, the omission of a system based on which the judicial procedures have been regulated during 7 past years, and replacing a system, which has already been tested, confronts the judicial systems with several problems. On the other hand, it must be examined that in the case of prosecution revival, do people access their rights sooner or later?

Ali–Reza Namdar – The chief of the branch 1004

Namdar is a law expert from Tehran university. He has 28 years of service judicial (including administrative records).

Mr. Namdar! Paying attention to this fact that judgment is an important affair and judgment issuance causes naturally the dissatisfaction of one of the parties, for this reason, the judges may be opposed to some threat. Don’t you think that the judges’ security is in danger to some extent?

The judges like me who examine the criminal cases that their main problems are contention, wounding with a knife, robbery and swindling are potentially opposed to threat. Fortunately, it hasn’t actually happened so far. We even don’t listen to verbal threat, If we show reaction to every verbal threat, we aren’t be able to do our daily duties. Anyway, according to job conditions, we have reached to this belief that we should ignore many attitudes and have liberality.

2- At present, the judiciary faces to the shortage of judicial experienced personnel. It is possible to move the administrative personnel to the judicial staff for removing this deficiency. Do you evaluate this operation as something positive?

I believe that the movement of individuals from administrative staff to judicial staff (considering their experiences) is a positive action. Because the administrative staff have touched the judicial problems well. Of course, we should be careful in the field of choosing and teaching individuals. Therefore, the accepted persons will enjoy required knowledge and efficiency to take charge of judicial affairs.

In the continuation of this interview, considering the current discussion of judicial sources (which is more about the plan of the prosecution revival), Mr. Namdar evaluates the plan as something positive and helpful and said: We were hopeful that “the renewed revival of the public prosecution plan is performed after its approval and passing legal procedures. Therefore it could improve many judicial affairs. But unfortunately it didn’t happen. Our main job problem is related to the confusion, which is resulted from the criminal procedure. In this way, a judge works as an assistant to the public prosecutor general, an interrogator, examining magistrate, … at the same time. So we are very busy.

Ali-Asghar Ebrahimi – Alternate Judge

Economical Independence of the judiciary

1-       It is a long time that the judiciary economical independence has been brought forth for discussion. Why hasn’t it been paid attention? The judiciary economic independence is one of the subjects, which has been paid attention to by the judiciary authorities and jurists for a long time. But for unknown reasons, this discussion hasn’t reached to a specific result.

The judiciary economical independence will lastly result in the independence of the judges and it causes the firmness of the votes. At the present situation, up to the level I know the judges’ face to financial problems. They gain little salary and advantages in return to the intolerable and round the clock troubles which they tolerate. From occupational aspect, they aren’t equal to the equal ranks of the social classes in any way. We hope that some plans are regulated so we can witness a clear scene in this field if God please.

2-       Won’t the judiciary economical independence and its economical dependence on the government affect on the judicial votes?

Of course in this field, the judges act, paying attention to the obligation principle and occupational conscience which are based on their Islamic ideas. We haven’t witnessed any instability in the votes or performing the judgments so far.

3-       The judge must be familiar with the new data of judicial science and he shouldn’t fall behind the latest knowledge. This requires helpful archive and library resources to be used in judicial complexes.

Don’t you feel any deficiency form this aspect in this field?

As one of the social classes, the judges must enjoy high level of education. They should access to the research findings specially in the field of judicial knowledge. At present, a library is put in working order in this complex by the effort of the complex’s respectable chief and the attention of “training and research deputy” of “Tehran Justice Administration”. Nevertheless, the number of existing resources is not enough and adequate. So the judges and other judicial authorities that are employed in this complex need to refer to other libraries.

Ali Bakhtiary, the judgment performance deputy

Ensuring the social security is one of the most important duties of the judiciary

Mr. Bakhtiar is in charge of the executive section of “the fight against flagrant crimes” plan. He believes that ensuring the social security for the families is one of the judiciary duties, which must be, paid attention to. In spite of the criticism made on the plan in the executive field, we also try to do our duties better, to the extent of our ability. Considering the responsibility of Mr. Bakhtiary in the field of judgment performance, we asked him:

Isn’t it better to choose the executive officer - who are usually chosen from soldiers - from the individuals who have higher martial degrees? (Considering the educational level and social ranks of the accused or offender)

However, we also believe that there should be provided some conditions in which the executive officers receive better instructions to become more familiar with their legal duties. They should try to do their duties more desirably by considering Islamic morals and behavior.

Mohammad Haj Mahmoodi - Shahid Motahari Judicial Complex Deputy

The necessary development of “Recommending to do good, and enjoining not to commit what is unlawful”

“Recommending to do good and enjoining not to commit what is unlawful” is one of the necessities of true religion of Islam. The extension and development of this matter in the society has been confirmed by the authorities of the religion and the government. As you know, this matter has some stages whose way of achievement has been mentioned in jurists’ adjudgements. Considering the fact that 23 years passes from the magnificent Islamic republic of Iran, we witnessed the continuous efforts of “Supreme Religious Leader”, the state and executive authorities, “ Friday-prayer leaders” and the mass media to achieve these stages. Nevertheless, it seems that this way doesn’t have much effect on some of the classes in the society. Therefore we witness the increasing extension of wickedness.

For this reason, the Islamic government is obliged to take a policy to decrease the wickedness to as least as possible for decisive and practical clash with the social insecurities. Therefore, one of the judiciary’s effective ways is dispatch of respectable judges to the neighborhoods, which are full of offenses. So they can observe the minor offenses and clash with the offenders, decidedly and legally.

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Hamid Abd-ol-Manafi – The public court judge

The shortage of experienced individuals in judgment affairs

Mr. Abd-ol-Manafi has MA in law. He has recently defended his thesis under the title: The analysis of Public Revolutionary Court’s draft modification.

--It was customary that the judges have been chosen from the experienced individuals for judgment affairs. Most of them were even very old. But at present we witness the increasing presence of young judges. What is your idea in this regard?

At present condition, we face shortage of judges. The judiciary opinion is to quicken the way of judges’ choosing and employing. At present, I work as an alternate judge in this complex. But if we refer to the judiciary conditions at the time of the public prosecution formation, we can see that individuals like me must have more than 7 to 8 years of Judicial service to reach to the prosecutor rank.

the speed in judges’ employment inevitable?

Anyway, for the reason of the increasing volume of cases, the conditions require that the judiciary quickens the way of judges’ competency examining. Otherwise, we encounter the severe shortage of judges in the courts. Up to the level I am aware, the mark coefficient of the exam by which the judges are chosen, has even been decreased.

Heshmat-ollah Davoodi Me’mar – The administrator of the judicial complex’s general office

Bad record is still making ambiguity

Mr. Davoodi has 26 years of judicial service experience in the justice administration (computing 4 years of activity in Shahid Motahari judicial complex). He has BA degree in law and he has been active as the judicial expert of “ help and guidance unit”, and office administrator in the courts… so far. We asked him to talk about the administrative staff’s problems and difficulties. Davoodi answered: The most important problem of administrative staff is the lack of enough experience of our new colleagues. Most of these dear persons don’t have enough experience in administrative affairs. They haven’t been trained adequately. Therefore it causes the work to be done again. On the other hand we encounter the shortage of human force in this complex. Sometimes, the service forces are even used for the performing of administrative affairs.

Mr. Davoodi announced that the number of administrative staff in this complex is 132 individuals. He believes that this number can’t solve the problem of large volume of delivered work in this judicial complex. As Davoodi says, these individuals work in secretariat sections, accounting office, dead records, guard office, the judicial help and guidance unit, the security of properties, and service affairs.

Davoodi announced that opening two large archives in this complex is one of the most important things. The finished cases are protected in related branches for 2 years. After 2 years, they are protected in the two mentioned archives for 5 years. According to Davoodi’s speech, the computer unit has started working from the second half of the year 1376 in this complex and the second half of the year 1380 in the judgment performing bureau.

In the continuation of this talking, Davoodi referred to the problem of individuals’ bad record in the courts and said that they are ambiguous. He said: I want to use this opportunity to talk to the judiciary authorities.

Most times, we encounter clients who have succeeded to gain a suitable occupational position after many years of continuous effort. Not having bad record is naturally required in the case. When we refer to these individuals’ cases, unfortunately we see that a simple family struggle or quarrel has been inserted in his case as a bad record. This problem causes much spiritual unhappiness. I request the judiciary to plan a policy to solve this problem. It is better to consider bad record at least for the individuals who have had 6 months of conviction.

Esmaiel Dehghanian – The chief of the branch 1015

We should consider equity when we encounter the two parties of the quarrel

Mr. Dehghanian is the most experienced judge in Shahid Motahari judicial complex that has 29 years of record and he is going to be retired. He has BA degree in law and has worked as an assistant to the public prosecutor general, interrogator, court of review judge, ……... in different provinces. He believes that a distinguished (superior) judge has the following characteristics:

The judge must always take God into consideration and works based on his conscience. When he encounters the two parties of quarrel and leans on the judgment seat, he should consider equity and humanity when he wants to issue a judgment to convict an accused, he should give a reduction in the accused punishment considering the aspects of the affair and legal dimensions in punishment reduction the judges must completely be familiar with legal and criminal problems and become continuously aware of the judiciary power’s news.

During mentioning some of memories of his service period, Mr. Dehghanian requested the judiciary authorities to pay more attention to the experienced judges and provide them with suitable facilities in last years of their service considering their physical conditions and age circumstances.

smaiel Dehghanian – The chief of the branch 1015

We should consider equity when we encounter the two parties of the quarrel

Mr. Dehghanian is the most experienced judge in Shahid Motahari judicial complex that has 29 years of record and he is going to be retired. He has BA degree in law and has worked as an assistant to the public prosecutor general, interrogator, court of review judge, … in different provinces. He believes that a distinguished (superior) judge has the following characteristics:

The judge must always take God into consideration and works based on his conscience. When he encounters the two parties of quarrel and leans on the judgment seat, he should consider equity and humanity when he wants to issue a judgment to convict an accused, he should give a reduction in the accused punishment considering the aspects of the affair and legal dimensions in punishment reduction the judges must completely be familiar with legal and criminal problems and become continuously aware of the judiciary power’s news.

During mentioning some of memories of his service period, Mr. Dehghanian requested the judiciary authorities to pay more attention to the experienced judges and provide them with suitable facilities in last years of their service considering their physical conditions and age circumstances.

Ali – Reza Keshavarz Miza Mohammad – The judge of the branch 1012

It is necessary to give information on time.

Mr. Keshavarz has MA degree and 22 years of experience in judicial affairs.

We asked Mr. Keshavarz if giving information in the field of last changes of the judiciary power for the respectable judges is on time or not. He answered: unfortunately, inspire of the efforts, which have been done in this field, we still suffer the existing inadequacies. Of the judge’s important instruments in judgment affairs are legal books and reference to the required sources. On the other hand, the way of giving information in different legal fields must be practical and up-to-date too. In this way the respectable judges become aware of the daily news and information.

At present, we have some weaknesses in both fields; library resources and giving information that we must try to compensate them. It has happened that during the issuance of a vote the judges haven’t been informed of the latest regulations and rules for the reason of this weakness, so they

Ali Mohadesi – The chief of the branch 1002

The judge’s dignity should be considered

Mr. Mohadesi was born in 1335 and has BA degree in law. He entered the judiciary power since 1360. During 20 years of service, after working in Khoram-abad City, Noor-Abad of Dolfan and Avaj, he entered to Shahid Motahari Judicial Complex since 1374, and started his work as the judge and chief of the branch. In the branch 1002, during the last year of his term of office, the cases have been examined in 8 days. Compared to other branches, this short time is unique.

In answering the question that “if judges are settled (stationed) in some police stations to quicken the legal procedures, doesn’t he accept this action as a positive movement?” Mohadesi said: The judge’s dignity (position) doesn’t necessitate that he is settled in judicial complexes. By establishing and making active a unit such as “the judicial police”, which is the court executive arm - we can help the judge in his judgment and case examining. Also by primary research, the interrogator and the justice in eyre should help the chiefs of the branches to collect enough documents to issue the judgment. The mentioned policy is very effective in dealing and straggle with social insecurities and corruption’s.

We asked Mohadesi about the high expenses of legal procedure and the clients’ dissatisfactions in this field. He answered: according to the regulations, the legal procedure’s expenses must be received. Because, providing the judiciary with the possibilities is dependent on receiving these sums of money. But regarding the economical situation of the society, it is advisable to arrange some plans to receive these sums from other income resources of the state.

At the end of the talking, mentioning some of the economical problems existing in the judicial system, Mohadesi requested the authorities to pay attention to this matter. In Mohadesi’s belief, the judiciary’s authority won’t be fulfilled in speech. It must be actualized in practice and performance. In his speech, in past periods, the judges’ appearance and clothes differentiated them from other classes of society (inspire of their social rank), and they enjoy a special creditability. At present conditions, some plans should be provided to differentiate the judicial system and the judges and protect their honor and creditability.

Behrooz Mohajeri - The alternate judge

The firm basis of “ The fight against flagrant crimes” plan

Mr. Mohajeri has been graduated from judicial science faculty. After training for about a year, He started working in Shahr-e Rey district of Tehran as an interrogator since 1377. In 1378 he came to Tehran and started working in Shahid Motahari judicial complex. At present, it is for seven months that he works as an alternate judge of the public court.

1- Mr. Mohajeri! We heard that you are one of the compiler of “The fight against flagrant crimes” plan. Please explain about the fields and motives of the plan presentation.

Considering the facts that the areas which are under the cover of Shahid Motahari judicial complex (the areas 17&18) are heterogeneous from social aspect, and the received reports from the police stations related to the complex (the police stations of Vali-e Asr, Yaft-Abad, Aboozar & Emam Zadeh Hasan) confirm the cultural choose existing in this area. The complex’s authorities tried to arrange some plans to solve this problem. The whole received letters show that the presence of rascals and villains in areas such as Zamzam and Hasht Metri (situated in Aboozar), the normal way of people’s life has been confused. Specially, sometimes in public passages, some bother is made for females and public decency is violated. It was heard that in “Qhaem Park” (which has been situated beside Shahid Motahari judicial complex), people manifestly drink alcoholic-liquor, get people’s property by force and do the things, which are against the public morals and decency. The received reports showed that especially at the late hours of the day, the ladies’ going and coming in the mentioned neighborhoods were accompanied with many problems. Therefore, it seemed necessary to present a plan to fight effectively against these flagrant crimes. On the other hand, before the presentation of this plan, the judicial authorities couldn’t issue the judgment just based on the received reports of the disciplinary force. Because the accused (at the time of encountering the judges) denied doing any offense. So the judges couldn’t satisfy their conscience and encountered problem to issue the judgment. Because, although the disciplinary force’s report is considered as a document, it is not a reason (by itself) to verify the offense. Therefore, paying attention to the mentioned cases, a group of Shahid Motahari judicial complex’s judges succeeded to present this plan after expert work for a month. When the respectable chief of the judiciary power visited this complex, the plan was presented to him in written form and confirmed by him. Also, Mr. Alizade the respectable chief general of Tehran justice administration confirmed the plan after seeing it. At present, three months passes the plan performance. The executive way of the plan is so that the judge accompanied the judiciary bailiffs (enforcement officers) including the disciplinary force, the executive commission of “recommending to do good and enjoining not to commit what is unlawful” and “mobilization force” set off for the high incidental crime districts and more round the area. In the case of observing any crime, the judge sends the perpetrators to the judicial system and during the procedure of case examining, the judge who has observed the crime usually examines the case. One of the specialties of the “ fight against flagrant crimes” plan is that according to the by-law and the opinion and notification of the judicial complex’s respectable chief, one of the judges must more round each day and during the administrative hours, he just do this duty and clash with the flagrant crimes out of the judicial complex’s space. This causes that the judge can examine the case easily and satisfactorily. The received reports show that since the beginning of plan performance, the disciplinary officers became more hopeful. On the other hand, the performance of such a plan presents the lengthening of the judgment time. Moreover, people announced their satisfaction of this plan by several contacts. The received reports show that the security has come back to the public passages and people feel calmer from social behavior aspect.

2-  Has the plan been criticized?

Since the beginning of the plan performance, there have been some criticism offered by the university teachers and lawyers. The criticism were more based on several basic axes. First, some said that the judge patrolling in public passages and districts to find the offender and clash with offenses is against the judgment and judge’s dignity and position. To answer to these dear persons, it should be said that the aim of this work is to give service to the people and to gain God’s satisfaction. The dignity and position of the judgment and all of the judges will be protected and permanent just when security governs the society (by the continuous efforts of he judiciary system). The installation of security is successful just when the judges and other factors of the judiciary do their duties in any possible and legal ways. In my opinion, it is not a correct interpretation to say that the judges’ dignity will be protected just by the presence in the courts and leaning on the judgment seat and issuing a judgment in a closed room called the court. Judgment is not limited to a special space and geography. Most times, it has happened that many legal appointments have been arranged out of the court’s space. On the other hand, even in this plan, the judge’s dignity has been protected. According to some sections of the by-law of the mentioned plan, the patrolling judge must enjoy a suitable vehicle and accompaniment of some disciplinary officers. On the other hand, he doesn’t interfere in physical operations to arrest the offender at all.

Some claim that this form of judgment waste the accuser’s rights. To answer to this criticism, it should be said that, this judgment way isn’t different form ordinary judgment. Because, the accused who has been sent to the court, is behaved based on the common procedures of the court and he can enjoy all the legal and lawful liberties including choosing an attorney…

The third criticism made on the plan is that: when the judge witnesses the crime, we can not accept him as the judge. Some believe that in this case, the judge and the witness are the same. But it must be said that in this case, the judge isn’t included the witnesses at the two parties. The definition of “witness” is completely clear based on the legislative stipulation.

3- It is possible that during encountering criminal actions performed by the offender, the judge feels hostility and hatred against the accused (for the reason of existing a sensitive and exciting space). The judge may have had their feelings during the judgment procedures and the date of judgments and therefore convicts him disregarding the accuser’s motives at the time of committing a crime. Now, the question that is arisen is that: Don’t you think that the accuser’s rights are wasted in this case?

It isn’t so at all, because the judge doesn’t have personal hostility toward the accused. The basis is on the judge impartiality. No matter that the judge himself has seen the crime scene or he relies on the documents based on the sent reports from the disciplinary force. The only difference is that the judge himself is the witness of the crime (based on the “fight against flagrant crimes” plan) and therefore he can issue the judgment easily and satisfactorily.

4- Is the main standard of vote issuance based on the conviction of the accused?

Yes, because he has gained knowledge. According to the specified cases in law, one of the proofs to prove the crime, is the judge’s knowledge. Witnessing the criminal action helps the judge to gain knowledge.

5- However, the person who has been observed during performing criminal actions and is arrested. Is not an accused but an offender.

According to legal procedures, we give him some explanations to understand his conviction in any way.

6- Nevertheless, the crime is decisive and we can’t say that the arrested person is accused, because when the judge witnesses the criminal actions and their performing by a person, in the judge’s opinion, such a person is considered as an offender. Don’t you think that holding the court and judgment procedure is ceremonial to a large quantity?

The purpose is that every one, who commits a crime, is punished. So if the judge feels conscience satisfaction and the documents also prove the crime certainty, the judge can issue the judgment of the accused conviction satisfactorily.

7- I mean that, according to the normal procedures of judgment, an individual enters the court as an accused and during the judgment is just an accused not a criminal. It is at the last stage of examining the case and date of judgment that his conviction or exoneration judgment is issued. But, based on this plan, the accused is received as a criminal since the beginning of research procedures. So, he must present some reasons to exonerate himself. Don’t you think that the mentioned cases are against the exoneration principle?

Although, the judge’s evidence may be based on the observation and announcement of crime, the arrested person is just an accused (during the judgment) and not any thing else. After presenting accusatory cases and other documents, in the case that the accused couldn’t properly defend himself, the court affirms his conviction.

8- Although there are some ambiguities in this field, let’s put away this discussion and ask other questions. You said that formally work as an alternate judge in this complex. Please explain the position of your colleagues to our bulletin’s readers and talk about the problems which they are encountered.

The alternate judges are the ones who undertake the charge of the court as a judge, when the branch chief is absent. Sometimes, it is possible that the alternate judge is beside the court’s chief and each one examines separate cases, which are sent to the same branch. One of the main problems of the alternate judge is the late announcement of their mission as the judge at the time of the branch chief’s absence. I mean that the alternate judge is informed to do his duty as a judge in the branch when there are many clients and high volume cases. This brings about some troubles for the judge. On the other hand, because of the replacement of judges in different branches, they encounter numerous and various cases, which they haven’t already been familiar with them. To examine the care and issue a judgment, they must study the case from the beginning that this problem itself takes a long time.

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Ghodratollah Mirza-aghaee-The help and guidance unit 

500 clients per day 

The lack of familiarity of the clients causes their confusion during the judgment stages, disturbance of the affairs and troubles of the administrative and judicial staff. Therefore, it was necessary to bring about a unit to give the required consultations to the clients. To do this, the judiciary tried to establish a unit called “Help and guidance” whose staff constantly gives services to the clients since the beginning of their entrance to the court and present effective guidance to move the affairs forward.

During the period that I provided a report in Shahid Motahari judicial complex, I had an opportunity to talk to one of the hard-working employees of the” help and guidance unit”. It was, Saturday’s late hours of administrative time when I went to interview the person. After a short search, I found the unit, which was situated in the lowest floor of the complex. Beside the entrance door to the mentioned unit, there were some clients. When they saw that I wanted to enter the room immediately, they rudely asked me: “What do you want to do?”

They didn’t expect that a newly arrived person like me entered the room to do his personal affairs disregarding his turn. I wanted to tell them that I have come to provide a report and some coordination have already been made that a person came out of the room. As soon as people saw him, they crowded around him. I said immediately: “I have come to interview with you. Probably Mr. Davoodi (the administrator of the judicial complex’s office) has already talked to you.” The man paused. His face showed that he had no desire to talk. But, after a little hesitation, he invited me to his room. I stared at his face from the beginning of our visit. He seems tired. I said: “You were busy yesterday.” He smiled bitterly and said calmly: “Every day is so.” I made myself ready for interview. His name was Ghodratolah Mirza-aghaee and he worked in “the help and guidance unit” with his colleague Hossein Motedayen. At the beginning, he answered the questions unwillingly. But, later he started talking. Probably he hadn’t talked to any person about his administrative problems, or he hadn’t found a hearing ear after describing and repeating a detailed explanation of these problems. Now, encountering a reporter who continuously asked him about the problems of “the help and guidance unit”, he seemed to say:” we said frequently and frequently, but no body heard.” He said: From the beginning to the end of office hours, we must give reply to 500 clients on the average. We must help them in different stages of the judgment procedure inducing writing a petition, complaint, and draft…. In most cases, we must even be the hearer of their family problems. Nevertheless, these efforts aren’t distinguished because they aren’t registered. “The help and guidance unit” was opened in this complex four years ago, and it is unique from this aspect. We have some clients even from justice administrations of Islam-shar, Varamin, Karaj & Shahriar that we must help them. The employees of this unit must enjoy a level of information as the same level as a judge. But, from the aspect of social rank and position, there is a long distance between the judges and the staff of this unit. Even, there is no desire to solve our financial problems by overworking. Because the offering sum of money for overworking isn’t more than 100000 Rials per month.

The specific report of this copy of “Ghezavat” bulletin had been attributed to Shahid Motahari Judicial Complex situated in Yaft-abad district of Tehran. It’s about a time that a plan called “examining the flagrant crimes” has been provided and performed by this complex and the complex chief and authorized judges have defended it in different interviews. “Ghezavat” bulletin puts the plan as opposed to the respectable administrative and judicial colleagues’ evaluation, and expects all of the colleagues to announce their opinions to the bulletin in this field. The articles and opinions of the colleagues will be published if they desire to, if not, they won’t be published and just be used in final opinion poll.

In the name of Almighty

Ayatollah Sharoodi! The respectable chief of the judiciary power!

Peace be with you.

Related to the plan of “examining the flagrant crimes in the happening place”, you are informed that the respectable chief of Tehran Justice Administration has removed some of the plan’s requirements as much as possible. Considering the fact that the plan’s success requires some instruments in addition to the human power, I beg you for the following instruments and equipment to be sent to this complex.

1.An automobile, which, appropriate to the position of judge and the judicial system and keeps the judges dignity in the area.

2.A mini-bus for the offenders

3.Two sets of mobile telephones

4.The plan begins at 8.5 am and ends at 9 p.m. During these hours the respectable judges and the secretaries are moving around the district (except an hour for eating food and saying the prayer). Therefore their work is very hard, and it completely differs form the court’s work.

Please issue a required order about the hardness of their work.

I thank you very much for your attention.

Javad Sadeghi

Tehran Justice Administration Deputy and the chief of Shahid Motahari Judicial Complex.

1) The plan’s title:

The plan of “examining the flagrant crimes in the happening place”

2) Purpose:

It is frequently observed that the flagrant crime perpetrators who are arrested by the bailiffs (enforcement officers) confess to their offenses, which cause disturbance in social security and public comfort. But, after entering the court, they deny their old confessions. Therefore the court is forced to do complementary researches. Sometimes, the court can not reach to enough knowledge and certainty. Therefore the accused is released. This causes them and other offenders to become bold. On the other hand, it causes the pessimism of the bailiffs and people about the judicial system. The present plan tries to block the escape passages of the offender from just punishment and access to the following purposes:

   1st) Observing the criminal and the original crime at the time of performing by the judge who issues the judgment

   2nd) Accuracy and rapidity in examining the case and observing the result of committing a crime by the criminal and people as soon as possible.

   3rd) Insecurity for the offenders and modifying their culture based on cheating the bailiffs and the court

   4th) Security for people and the victims’ fast access to the bailiffs and court (in flagrant crimes)

   5th) Preventing from the crime to happen as a result of attending the place, rapidity in examining the case and observing the result by both parties.

3)The place of court formation:

Paying attention to the article 189 of “judgment procedure law” of public and revolution courts in criminal affairs and article 101 of the mentioned law in civil affairs and the doctrine of law scholars, the existence of court depends on the following conditions:

1st-The special place which has been determined for the judgment.

2nd-An obliged judge who is competent to examine the cases.

3rd-Existing of a claim which must be examined.

Therefor, the court can be held in a mosque, police station, inside a car and so on.

Note: At the beginning of Islam, the judge’s house was the place of court formation. Then, the mosques were the place of court formation. In the evening the judge sat outside the mosque to examine the claims of non-Muslim.

4)Assigning and registration:

In these courts, assigning is done by means of a notification issued by the judicial complex’s administrator to the courts’ chiefs to hold the court in the place. The case registration is done in the cars of indirect relation.

5)Research, obtaining security, examining the case, issuing a judgment and revision.

The order of research, obtaining security, examining the case, issuing a judgment and revision of the court mentioned in the plan is the same as their order in the judgment procedure of public and revolution courts in criminal affairs. In every stage that examining and making a decision requires attending the judicial complex, the court will be moved to the complex.

Note 1- The confirmation of arrest warrant by the judicial complex’s administrator will be done in the place of the complex.

Note 2- In the case of flagrant crimes, which the court mentioned in the plan, is not competent to examine them, it must be acted according to the article 24 of A.D K. law.

6)The procedure of the judgment:

The final award of the court will be performed according to the determined punishment as fallow.

1st- Imprisonment – The losing party is sent to prison and the procedure is immediately registered in registration branch. Then, the care is sent to the judgment performance unit to follow the executive procedures and to supervise it.

2nd-Lash or whip – As opportunity arises and according to the judge’s recognition (the judge who has issued the judgment), the sentence will be executed in a suitable place like the place in which the crime has happened or the police station.

3rd- Cash fine – In the case that the time of judgment execution is in office hours, the sum of cash fine must be paid in bank’s related account and its receipt must be included in the case by the secretary and under the supervision of the judge. Otherwise, the sum of cash fine must be received in cash and the related process-verbal must be included in the case.

7)The judgment expenses

The judgment expenses will be computed and received according to the article 301 and its next articles of public and revolution courts’ judgment procedures in criminal affairs.

8)The personnel and the possibilities

A-Personnel

 The human force in addition to the court judge is as fallow:

1.secretary  2.driver 3.two experienced officers from judicial bailiffs

B-Possibilities-automobile – mobile telephone – stationary – lateral expenses.

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The orders of judges’ disciplinary court

1- Forum: The first branch of “High disciplinary Court of Judges”

Summary: According to the executive case No.563/78 and civil cases No.1659.78, 232/79, 163/79 and 79/320 of the branch […] of the public court situated in Tehran’s […] judicial complex, at first, Mr. […] by proxy of Mr. […] has presented to the court petition related to the evacuation and delayed rental on behalf of Mr. [….] and in return Mr. […] by proxy of Mr. […] presents to the court a petition according to the conclusion of a contract of sale, required a formal document of movement against Mr.[……]. After being linked both claims together and series of examination, Mr. […]‘s claim hasn’t been accepted for the reason of cancellation the contract conclusion of sale. According to the petition No. […], Tehran public court’s branch No. […] has issued a judgment on evacuation of the place and paying claimed delayed rental on behalf of Mr. […]. The mentioned issue has been finalized and according to the attorney’s requests of the winning party, the writ of execution has been issued. The executing case No. 563/78 has been formed in ” the judgment executing section.” By the reference of judgment executive officer to the place, it has been given a grace period of one week to the losing party. After expiring the grace period in 78.7.11, the executive officer went to the place. The losing party wasn’t present. The door of one of warehouses (stores) was opened by a locksmith and the equipment which were inside the store was recorded. Then the equipment was heaped up in one of the stores. The door of the store was locked and sealed and its key was given to the winning party. But the other tow stores remains in the possession of Mr. [….] who is Mr. [….]’s lessee. To evacuate the possessed stores the lessee asks for one-week extension, but doesn’t sign the process-verbal, which is organized by the executive officer. Although the executive officer refers to the place two times, Mr. [….] prevents to evacuate the place. With the satisfaction of the winning party, he was given one-month extension. During the executive operation, Mr.[….] presents a petition on behalf the parties of the evacuation case-e. Mr. [….] and Mr. [….] based on the stopping the executive operation and cancellation of performing the executive case No.563/S/78/2. He presents one-third objection relative to the mentioned petition. The branch [….] of Tehran public court issues a writ to refer to an expert in 79.3.21 in order to examine the situation of third objectors’ possessed buildings and its accordance with subject of lease which has been mentioned in the lease document organized between the possessor and Mr. […] The court elected expert expresses that all the buildings situated within the limit No. 92/4783 are in possession of Mr. […] and they have a building license issued by municipality and are more than 20 years old.

The court doesn’t accept the third objectors’ protest by virtue of the expert’s opinion in 79.4.19. The judgment executive officer goes to the place in 79.4.27 and gives a grace period of one week to the objectors again. In 79.5.6, the equipment of Mr. […]’s both possessed stores is recorded and is given to the winning party. For the reason of the objection to the previous expert’s opinion, the court determines another expert. The recent expert expresses that the age of the building established in the place, which has been leased, is 6 years and the limit of objectors’ standing property is separated from their possessed standing property. He has added that the stores have been established in the open spaces of the leased place by the objectors and with the permission of the building’s owner. The branch […] of Tehran public court tries to remove the ambiguity of the judgment performance. Since the second expert has announced that the workshop leased by Mr. […] is separated from their possessed place, according to the articles 25 & 27 of “judgment executing law”, the court prevents the performance of writ of execution related to the petition No1004 & 1003-74 about Mr. […]’s possessed stores. It is determined that the possessed stores must be delivered to him again. For the reason that the subject of the third objectors’ protest has been eliminated, the court rejected their claims. The assistant to the public prosecutor general of the judges’ disciplinary justice administration mentions in the third page of his report, some of the infractions of Mr. […], the chief […] of Tehran public court considering the local case. He has mentioned that the content of the objectors’ petition shows that they claim a right within the limit of the leased place and there is no ambiguity in this subject. The evacuation judgment is related to the whole environment.

According to the article 44 of “civil judgment executing law” and article 417 of “civil judgment procedure law”, the court must examine the third objectors’ protest and expresses its idea relative to the nature of the subject. The court hasn’t done any action in this field. It is a fraction. Because the court has rejected the claim of third objection without paying attention to the nature of the subject. It must issue a writ. Because, if it is accepted a the court judgment, the subject be comes the same as the matter adjudicated and in this case the claim of the third objectors can not be proposed again. Also, if the court’s decision is like a judgment, it can be objectionable but it hasn’t been objected. Therefore, Mr. […] is an offender for the reason that he hasn’t considered the regulations of civil judgment procedures and their performance. According to the article 20 of constitution related to the recognition of judges infractions, it was requested to prosecute Mr.[…], the chief of Tehran public court’s branch No.[…]. Mr. […] another assistant to the public prosecutor general of the judges’ disciplinary justice administration has agreed with the first expression of Mr. […]. Finally, with the agreement of the judges’ disciplinary public prosecutor, the indictment No.530, 80.5.29 was organized against Mr.[…] . According to the article 20 of the mentioned constitution, it has been requested to issue a judgment to punish him. A copy of the issued indictment has been sent to Mr.[…]. According to the registered draft No.9340, 80.7.26 that he himself has presented to the court, he has shortly expressed the following story. Considering the petition No.103&104/74, it was issued that the store established in the place No.93/478 must be evacuated on the benefit of the claimant […]. On this basis, the writ of execution was issued and the evacuation judgment relative to the store was performed. The problem begins at the time when the winning party’s attorney has requested that the other two stores situated in the place must be evacuated. The stores were evacuated and Mr.[…] objected to the writ of execution about these two stores. The person who was in charge of the executing the judgment requested me to remove the ambiguity. According to the confirmed medical documents the first expert suffered mental disorder and he wasn’t able to work.

Therefore, the court chose another expert. The new expert has expressed that the other two stores which have been established about 6 years ago and possessed by Mr. [..], is separated from the place of the lease. According to the decision dated 79.9.15, the court has resolved the effect relative to these two cases, and therefore, no infraction has been happened. The objections made by the assistant to the public prosecutor general (if we suppose that they are correct), are related to the third objectors who haven’t complained against me. The claimant himself and his attorney claim that the decision (dated 79.9.15) which has been issued to remove ambiguity is objectionable and it can be reviewed. In my opinion, this decision is an administrative order not a judicial one. This invaluable property has easily been possessed by the plaintiff, with treatment, frightening, defamation and such and such clashes. I requested the chief of the complex to refer the case to another judge, but no one didn’t accept to examine this case. I have been a judge for 17 years and finish 300 cases each month I am deprived of primary equipment of life like automobile, house and so on. All of these are dependent on the respectable judges’ opinions.

According to the satisfaction letter dated in 80.7.26, Mr.[…] has expressed that he doesn’t have any complaint against Mr.[…] . Obtaining the opinion of the judges’ disciplinary justice administration deputy based on the indictment issued by the mentioned administration, the court requests to issue a judgment to determine the defendant judge’s disciplinary punishment.

By examining the case, reading the regulated report and doing consultation, the end of examination and issuance of the judgment are announced.

The court judgment:

It seems that the infraction of Mr.[…] the chief of the branch […] of Tehran public court in the executive case No.563/78 is obvious. Because, based on the petition No […] issued by the branch […] of Tehran public court, the court has issued a judgment on the evacuation of the registered place No.[…] in Tehran’s district 11. (the extent of the place is 1035/3 square meter). It was also issued to pay the delayed rental and the issued judgment has been finalized.

After the issuance of writ of execution and performing the issued petition, Mr.[…] claimed the possession of part of it and have presented a petition of third objection to the court on behalf of the losing party.

It must be considered that the issue No.1345-78.4.8 doesn’t have any ambiguity. In third objection claims, based on the regulation of civil judgment procedure law, the court must examine the third objection claim with the determination of examining time and invitation of both parties. Then it must issue the required judgment. But such an action hasn’t been done. On the other hand, taking two opposite decisions during the two stages, (one of the decisions is based on breaching the issued judgment and the other is based on the refection of the third objection plaintiffs’ claims), hasn’t been correct. Therefore by virtue of article 20 of the constitution of the judges’ faults, Mr.[…] the chief of the branch No.[…] of Tehran public court is convicted to the deduction of 1/10  of his salary for 3 months.

2- Forum: The first branch of ” High disciplinary court of judges”

Case subject: Examining the disciplinary infraction of Mr. […], the chief of the branch […] of Tehran public court

Summary: According to the indictment No.41 –80.1.30, the judges’ disciplinary public prosecutor has requested the disciplinary prosecution of Mr. […], the chief of the branch No. […] of Tehran public court, for the reason of committing a disciplinary infraction in the case No.65/1401/77 based on the article 20 of the constitution of the judges’ faults recognition. The whole mater is as follow.

Mr.[…], the justice administration’s attorney, has right to complain based on the delivered attorney ship’s letter. According to the delivered draft dated in 19.8.17, he announced the formation of cases No. 32/75 & 74 in the branch No.[..] of Tehran public court. The subject of the court is the claim of “Tehran civil land organization” on behalf of Mr. […] & […] & […] and Mrs.[…]. Finally they resulted in issuance the petitions No.285, 286 and 281-75.6.20 based on the conviction of the mentioned persons. My clients, Mr.[…], […], […] and […], are informed of the mentioned judgment by “Lands and deeds registry”. I, by proxy of the mentioned clients, presented a petition to Tehran public court” branch No.[…] based on the third objection, on behalf of winning and losing parties of the case No. 65/77. I requested the court to cancel the effects of the mentioned petitions. The branch […] of Tehran public court issued a judgment without examining the case and against the formal experts’ opinions recorded in the case. The court rejected the clients’ third objection claim by the issue No. 270-78.7.7 I requested the court to review the judgment in legal extension. The case was referred to the sixth branch of Tehran revision court for examination. The branch board expressed that the matter is financial. (The expression has been recorded in the case No. 107/79). Therefore the case was returned to the primitive court’s office to remove its flaw. A written warning about removing the flaw was sent to me by the office administrator of the branch No.[...]. I removed the flaw and cancelled stamp in determined extension too. But, the office administrator of the branch […] has issued a writ based on the rejection of my revision request. Whereas, according to the regulations of article 503 of the public courts’ civil judgment procedure law which rules over the regulations of article 3 of the state’s income collection law and its consumption in such cases, the duties of the court’s office administrator and the claimants are clear. According to the explicit note 2 of article 339 of civil judgment procedure law, which has been recently approved, the office administrator is not competent to take a decision whether the petition of revision is perfect or imperfect. The issuance of rejection writ is one of the judge’s duties. By the enforcement of article 503 of civil judgment procedure law and article 3 of the state’s income collection law, the matter of difference between the amount and the value of the request (which is the subject of article 58 of old civil judgment procedure law) interferes in the subject. Moreover, the old approved article 88 ruled over the first session of judgment in primitive stage and it didn’t rule over the third objection claim. Therefore, since the incorrect decision of the court’s judge has spoiled my client’s rights and has caused flagrant oppression over them, I request the disciplinary prosecution of the mentioned judge. The mentioned attorney has included the copy of the office administrator’s refection writ and the petition No. 270-78.7.7. According to the order of disciplinary justice administration’s respectable chief, Mr.[…] has provided a report from local cases and finally has expressed that in examining the case No.65/77 of the branch[…], Mr.[…] has committed an infraction. Since he has good reputation and his infraction hasn’t been one of the example of elusion, according to the article 26 of justice administrations law modification approved in 1356 and the consequent modifications, it has been suggested to suspend Mr.[…] for 2 years. According to the opinion dated 80.1.26 Mr.[…], disciplinary justice administration’s first deputy has expressed that the subject of the infraction is based on the article 20 of the constitution related to the recognition of the judges’ disciplinary faults. The simplest form of these faults has a disciplinary punishment of degree 2 to 4. Therefore the suspension of his prosecution doesn’t have any legal justification. Then, with Mr.[…]’s agreement about the expression of disciplinary justice administration’s first deputy and the confirmation of disciplinary justice administration’s respectable chief, the indictment No.41-80.1.30 has finally been organized and the case has been referred to this branch. By sending a copy of the mentioned indictment, Mr.[…] has delivered a draft which has been registered by No.9110-80.7.12.

In the draft, he has said how he has taken the decision. He has expressed that according to the opinion of sixth branch of Tehran revision court and based on legal scales, he has done his duty and hasn’t done any infraction and has requested the issuance of his own acquittal.

By obtaining the deputy’s opinion of the judges’ disciplinary justice administration (i.e. based on the indictment issued by the judges’ disciplinary justice administration, it is requested to determine the disciplinary punishment of the defendant judge), doing consultation, reading and examining the case, it is announced that the examination finished and the court issued the following judgment.

The court’s judgment:

The disciplinary infraction of Mr. […], the chief of branch […] of Tehran public court in the case No.65/1401/77 A.GH of the branch (the case No. 107/79 of the sixth branch of Tehran revision court) based on doing illegal action to remove the branch as it was explained in the report of the “assistant to the public prosecutor general” of the judges’ disciplinary justice administration, is obvious. Because the article 529 of public and revolution courts’ judgment procedure law approved in Farvardin, 1379 by the Islamic Council Assembly and the old civil judgment procedure law with all its modifications and annexations have been annulled. According to the explicit article 503 of the same law, it was determined how to compute and receive the judgment expenses 9based on the article 3 of the state’s in come collection law and its consumption approved in 1373. On the other hand, according to the note 2 of article 339 of public and revolution courts’ civil judgment procedure law, if the revision petition’s flaw wasn’t removed in legal extension, according to the writ of the primitive court, a writ is issued about the subject and the court’s office administrative can not issue the writ. For the reason that by issuance a rejection writ of petition dated in 79.4.13 by office administrator of the branch […] of Tehran public court and its confirmation by the mentioned branch, the real claimants have been deprived from the rights and advantages of one revision stage. Since the complaint’s defenses are not justified and considerable, and their contents and contexts confirm the designed complaint, therefore according to the above-mentioned matter, the infraction is obvious. So, by virtue of article 20 of the constitution for the judges’ fault recognition, he is convicted to deduction of 1/10 of his salary for three months.

______________________________________________________________

One vote – one Experience

I wish he were an insane

The complete content of the public prosecutor’s complaint about assault and battery on an infant of three years old

In the name of the Almighty

The respectable chief of Tehran public court, the branch 1109!

The news in Iran newspaper of June of the instant year that a three-year-old infant has been subjected to injury and trouble attracts the attention. The injuries and the strokes are so severe that their effects are visible on the infant’s body, and he is confirmed to bed in a hospital for the reason of convulsion. Paying attention to the fact that his parents are under suspicion in this accident, the chief of the judicial field along his legal duty requested me (in written form) to follow the matter seriously. For the reason that in public and revolution court system, the judge is charged to follow, research and collect the reasons, after announcing the completion of researches, the first session of judgment has been held in the branch of 1109 of Tehran public court.

Paying attention to the papers registered in the case and the results of the firm researches, I want to explain about the complaint. It is understood from the research results that the victim of this case is an innocent infant who has been deprived of the blessing of a common focus, because of the differences between his father and mother. Three years passed form their marriage that they were separated from each other. Although the infant’s mother has right of fostering from legal aspect, she refuses to look after the infant for the reason of different financial and spiritual excuses. She disregards this right willingly and delivers her child to the father. It is a summary of what has happened.

Another considerable point is that the studies about the subject of child hurting show that the physical injuries of infants have mainly been done uncommonly by the family members or the relatives.

A research has been done about 2240 individuals of Tehran high school teen-ages. Within 1600 individual, 1362 individual (about 60%) being beaten by the stick or other instruments 17%, being kicked 15%, being thrown 10%, being bitter 4%.

The above statistics shows that less uncommon child- hurting has been done by the father or mother themselves. Because, there is no doubt that the position of parents in our religion is respectable and high. This relation ship is mainly out of the laws and rules’ necessities and different conventions.

It can be claimed that in most countries and within all nations with any kind of rules and customs, this relation ship has been gotten from holly emotion and mixed with flesh and blood. Father and child are two high and beautiful morphemes and their relationship is resulted from love and holiness. In all languages, as soon as a child starts talking, he pronounces dad, because of these intimacy and relationship.

This infant is beautiful in his father’s eyes with any kind of figure.

Although he is very ugly

His father sees him as fair as a Latin proverb says: No fathers or no mothers say their children ugly.

Every body is fascinated by his own child. But, as I said, we can observe a low percentage of uncommon children hurting within real fathers and mothers.

Unfortunately, according to the court researches, we witness an exception in this case. Now, I must announce my apology for all Iranian emotional fathers and mothers. Because the court’s detailed researches show that the place of plaintiff and defendant has changed this time. It seems that a revolution has happened in the claim. It was appropriate that the father stood in the complainant’s position and demanded justice and complain about the sadness, suffering and persecution of his three-year-old infant, and pleaded justice for his innocent infant because of the black effects on different parts of his body. But, the court has understood that the father must sit in the accused position and must be inquired as a person who has injured and hurt his own child.

According to our interior laws and articles 19&39 of infant right law in universal convention, which was accepted by Iran in 1373.3.25 and was enforceable in 1373.5.21, it has been specified that law must protect these inquired infants.

The father of this infant has married 2 times so far. By reference to the records, inquires and cases formed in Aligoodarz City, injuring has been one of the main reasons of separation. The mother of the infant has fully explained about the condition of her own husband’s assault and battery in an inquiry dated in 79.4.4 in the branch […] of publish court. His present wife has obviously talked about the condition of his husband’s battery in an inquiry dated in 80.4.24. She has presented some document that she has also referred to the physician because of injuring and fracture of the bone. The explanation of the event has been recorded in the case. One of the disciplinary force’s staff has employed Mr. Mahdi as a driver. (Mr. Mahdi has sold his kidney for the reason of financial difficulties.

In the inquiry dated on 80.4.26, the employer of Mr. Mahdi says that he is very nervous and has conflict with other personnel. One of his colleagues who works in the motor section of a cultural sport club talks about his frequent anger and clashes with him.

In the mentioned statistics, you are informed that the interference of the real parents of the infant in the field of uncommon injury is limited and the injury of biting has a low percentage. But in this case, we can see both exceptions.

“The medical jurisprudence has announced its opinion in 80.4.21 that according at the consultation with the dentist of the organization, the effects of biting is observable in the right leg and the left forearm and arm. These effects are disappearing. As time passes, it is not possible to express an explicit and decisive opinion. But, by adjusting the distance of the accused’s front teeth with the place of disappearing bites on the right leg and left arm of the infant, we can say that they have been brought about by Mahdi (the infant’s father).

Whoever examines this adventure, at first he thinks that perhaps the door of the action has mental difficulty. Fortunately, by referring the subject to a commission of psychiatrists, the court has given a reply to the probable doubt. They have announced that the accused doesn’t have any madness or sense disorder.

Paying attention that the court is in charge of adjusting the action with the legal articles, It is requested to issue the required judgment. It is certain that we don’t want to cut the relationship between the father and the child. Because both of them need to communicate with each other. Surly, the child needs more to be brought up under the supervision of his father. It is more effective in his future. Therefore, I request the court to put the father under the supervision of his father. It is more effective in his future. Therefore, I request the court to put the father under compelling training (as complementary punishment), to become familiar with paternal duties. I request the mass media to propagandize the subject. In Kordad month of the year 1377, a conference about child hurting was held in Tehran with the cooperation of UNICEF and the state. It is said in the conference report that some individuals from non-governmental organizations, families, moss media, judicial authorities, State Welfare Organizations, Ministry of Health, Educational Ministry and some researchers and university authorities participated in the conference.

The mentioned groups expressed happiness and satisfaction that Iran has joined to the universal treaty of child law. They said that they are happy to see the increasing of awareness relative to child-hurting recognition as a social problem in Iran and other countries. The participants expressed satisfaction about the help of mass media in discovering some cases of child-hurting which remained hidden without its report. They expressed regret that the present laws can’t adequately support the children for the reason of the lack of awareness and specialty of people who are regularly responsible to look after the children.

The general idea was based on the fact that it is necessary to train people more if we want to solve the social complicated problems of child-hurting.

The conference confirmed on distinguished solutions for future. These solutions are as fallow:

-   Intensive training of teachers, parents and children by different ways in the field that the children must have right to be supported against injury.

-   Revealing and following the cases of child-hurting by mass media sensitively and responsibly

-   Establishing a center to receive information in the field of child hurting and advertising for its existence.

-   Training school teachers and sanitation center’s staff to recognize and report the child-hurting cases

-   Establishing a hot line for consultation and support from injured children.

-   Performing a mental-sanitary plan to prevent child-hurting by the parents and people who are responsible to look after the children

-  Obtaining security that the right of child fostering is given to one of the parents just based on his/her competency

-  Quickening the examining of the cases which are related to child-hurting

-  Training and creating judicial sensitiveness

-  Revision of the rules which provide the possibility of child-hurting for adults (such as the rules which are under the title: “Keeping adults’ authority)

At the end, it is necessary to thank the Iran newspaper’s active reporters who had a suitable role in reflection of the subject. I hope that the result of the court is in such a form that we don’t witness these events.

Date:    80.7.21

The case No.: 818/80

Petition No.: 1448-80/7/21

Forum: The branch of 1109 of Tehran public court

Complainants:

1-  Tehran justice administration deputy

2-   Mr. […], the mother and the guardian ad litem of the victim

Attorneys: Mr.[…] & Mr.[…], Enghelab street,…

The accused:

1.   Mahdi: Ostad … Street

2.   Akram: Tehransar….

The accusation – premeditated assault and battery

_____________________________________________________________

One vote – one Experience

I wish he were an insane

The complete content of the public prosecutor’s complaint about assault and battery on an infant of three years old

In the name of the Almighty

The respectable chief of Tehran public court, the branch 1109!

The news in Iran newspaper of June of the instant year that a three-year-old infant has been subjected to injury and trouble attracts the attention. The injuries and the strokes are so severe that their effects are visible on the infant’s body, and he is confirmed to bed in a hospital for the reason of convulsion. Paying attention to the fact that his parents are under suspicion in this accident, the chief of the judicial field along his legal duty requested me (in written form) to follow the matter seriously. For the reason that in public and revolution court system, the judge is charged to follow, research and collect the reasons, after announcing the completion of researches, the first session of judgment has been held in the branch of 1109 of Tehran public court.

Paying attention to the papers registered in the case and the results of the firm researches, I want to explain about the complaint. It is understood from the research results that the victim of this case is an innocent infant who has been deprived of the blessing of a common focus, because of the differences between his father and mother. Three years passed form their marriage that they were separated from each other. Although the infant’s mother has right of fostering from legal aspect, she refuses to look after the infant for the reason of different financial and spiritual excuses. She disregards this right willingly and delivers her child to the father. It is a summary of what has happened.

Another considerable point is that the studies about the subject of child hurting show that the physical injuries of infants have mainly been done uncommonly by the family members or the relatives.

A research has been done about 2240 individuals of Tehran high school teen-ages. Within 1600 individual, 1362 individual (about 60%) being beaten by the stick or other instruments 17%, being kicked 15%, being thrown 10%, being bitter 4%.

The above statistics shows that less uncommon child- hurting has been done by the father or mother themselves. Because, there is no doubt that the position of parents in our religion is respectable and high. This relation ship is mainly out of the laws and rules’ necessities and different conventions.

It can be claimed that in most countries and within all nations with any kind of rules and customs, this relation ship has been gotten from holly emotion and mixed with flesh and blood. Father and child are two high and beautiful morphemes and their relationship is resulted from love and holiness. In all languages, as soon as a child starts talking, he pronounces dad, because of these intimacy and relationship.

This infant is beautiful in his father’s eyes with any kind of figure.

Although he is very ugly

His father sees him as fair as a Latin proverb says: No fathers or no mothers say their children ugly.

Every body is fascinated by his own child. But, as I said, we can observe a low percentage of uncommon children hurting within real fathers and mothers.

Unfortunately, according to the court researches, we witness an exception in this case. Now, I must announce my apology for all Iranian emotional fathers and mothers. Because the court’s detailed researches show that the place of plaintiff and defendant has changed this time. It seems that a revolution has happened in the claim. It was appropriate that the father stood in the complainant’s position and demanded justice and complain about the sadness, suffering and persecution of his three-year-old infant, and pleaded justice for his innocent infant because of the black effects on different parts of his body. But, the court has understood that the father must sit in the accused position and must be inquired as a person who has injured and hurt his own child.

According to our interior laws and articles 19&39 of infant right law in universal convention, which was accepted by Iran in 1373.3.25 and was enforceable in 1373.5.21, it has been specified that law must protect these inquired infants.

The father of this infant has married 2 times so far. By reference to the records, inquires and cases formed in Aligoodarz City, injuring has been one of the main reasons of separation. The mother of the infant has fully explained about the condition of her own husband’s assault and battery in an inquiry dated in 79.4.4 in the branch […] of publish court. His present wife has obviously talked about the condition of his husband’s battery in an inquiry dated in 80.4.24. She has presented some document that she has also referred to the physician because of injuring and fracture of the bone. The explanation of the event has been recorded in the case. One of the disciplinary force’s staff has employed Mr. Mahdi as a driver. (Mr. Mahdi has sold his kidney for the reason of financial difficulties.

In the inquiry dated on 80.4.26, the employer of Mr. Mahdi says that he is very nervous and has conflict with other personnel. One of his colleagues who works in the motor section of a cultural sport club talks about his frequent anger and clashes with him.

In the mentioned statistics, you are informed that the interference of the real parents of the infant in the field of uncommon injury is limited and the injury of biting has a low percentage. But in this case, we can see both exceptions.

“The medical jurisprudence has announced its opinion in 80.4.21 that according at the consultation with the dentist of the organization, the effects of biting is observable in the right leg and the left forearm and arm. These effects are disappearing. As time passes, it is not possible to express an explicit and decisive opinion. But, by adjusting the distance of the accused’s front teeth with the place of disappearing bites on the right leg and left arm of the infant, we can say that they have been brought about by Mahdi (the infant’s father).

Whoever examines this adventure, at first he thinks that perhaps the door of the action has mental difficulty. Fortunately, by referring the subject to a commission of psychiatrists, the court has given a reply to the probable doubt. They have announced that the accused doesn’t have any madness or sense disorder.

Paying attention that the court is in charge of adjusting the action with the legal articles, It is requested to issue the required judgment. It is certain that we don’t want to cut the relationship between the father and the child. Because both of them need to communicate with each other. Surly, the child needs more to be brought up under the supervision of his father. It is more effective in his future. Therefore, I request the court to put the father under the supervision of his father. It is more effective in his future. Therefore, I request the court to put the father under compelling training (as complementary punishment), to become familiar with paternal duties. I request the mass media to propagandize the subject. In Kordad month of the year 1377, a conference about child hurting was held in Tehran with the cooperation of UNICEF and the state. It is said in the conference report that some individuals from non-governmental organizations, families, moss media, judicial authorities, State Welfare Organizations, Ministry of Health, Educational Ministry and some researchers and university authorities participated in the conference.

The mentioned groups expressed happiness and satisfaction that Iran has joined to the universal treaty of child law. They said that they are happy to see the increasing of awareness relative to child-hurting recognition as a social problem in Iran and other countries. The participants expressed satisfaction about the help of mass media in discovering some cases of child-hurting which remained hidden without its report. They expressed regret that the present laws can’t adequately support the children for the reason of the lack of awareness and specialty of people who are regularly responsible to look after the children.

The general idea was based on the fact that it is necessary to train people more if we want to solve the social complicated problems of child-hurting.

The conference confirmed on distinguished solutions for future. These solutions are as fallow:

-   Intensive training of teachers, parents and children by different ways in the field that the children must have right to be supported against injury.

-   Revealing and following the cases of child-hurting by mass media sensitively and responsibly

-   Establishing a center to receive information in the field of child hurting and advertising for its existence.

-   Training school teachers and sanitation center’s staff to recognize and report the child-hurting cases

-   Establishing a hot line for consultation and support from injured children.

-   Performing a mental-sanitary plan to prevent child-hurting by the parents and people who are responsible to look after the children

-  Obtaining security that the right of child fostering is given to one of the parents just based on his/her competency

-  Quickening the examining of the cases which are related to child-hurting

-  Training and creating judicial sensitiveness

-  Revision of the rules which provide the possibility of child-hurting for adults (such as the rules which are under the title: “Keeping adults’ authority)

At the end, it is necessary to thank the Iran newspaper’s active reporters who had a suitable role in reflection of the subject. I hope that the result of the court is in such a form that we don’t witness these events.

Date:    80.7.21

The case No.: 818/80

Petition No.: 1448-80/7/21

Forum: The branch of 1109 of Tehran public court

Complainants:

1-  Tehran justice administration deputy

2-   Mr. […], the mother and the guardian ad litem of the victim

Attorneys: Mr.[…] & Mr.[…], Enghelab street,…

The accused:

1.   Mahdi: Ostad … Street

2.   Akram: Tehransar….

The accusation – premeditated assault and battery

____________________________________________________________

The court’s judgment

In this case: 1- Mr. Mahdi, 23 years old, driver, citizen and resident of Tehran, is released by giving a pledge. 2- Mrs. Akram, 26 years old, housekeeper, citizen and resident of Tehran, is released by giving a pledge. They are accused of frequent premeditated assault and battery against the 3-years-old infant […] that it has resulted in fracture of the infant’s ribs, several injuries and cerebral hemorrhage. The summary of the case process is as follows.

At noon of 80.4.11, the disciplinary force is informed that a three-year-old infant, who has been tortured, is confined to bed in child medical center of Imam Khomeyni hospital. The patrolling unit of police station 148 sets off for the place. They observe the infant who has been confined to bed in special care section. The infant has had several biting effects on his body. The physicians said that he had some fractures of bone in his ribs and skull. The disciplinary officers took the infant’s father (the first accused) to the police station. He expressed that the infant’s stepmother (the second accused) has battered the child. He stated that the reason of battery is that the infant can’t go to the lavatory and he doesn’t have any complaint of the stepmother. The subject was reflected in one of the morning newspaper that the parent of the child doesn’t have any complaint. Therefore, according to the order of Tehran justice administration’s respectable chief, the respectable deputy of Tehran justice administration requested to follow the subject seriously. Paying attention to the couple’s place of residence (where the offers has happened), the case was referred to Hashemi judicial complex. The case was given to this court to be examined. To discover the truth, the court research completely and inquired the couple and their neighbors and relatives. The court also asked for the opinions of medical jurisprudence and hospital authorities.

In the research, Mrs. Akram (the second accused and the stepmother) stated that her husband is nervous, and has frequently battered the infant. In reply to her objections, he says that he has authority over his child. She says that she hasn’t done any action so far, because of her fears from her husband’s threats. She has shortly explained the accident, which caused the child to be confined to bed in the hospital.

In Friday evening, she had a verbal conflict with her husband. After beating her, the husband enters the child’s room and locks the door. Then he batters the child. The next day, the child has been pale and unhealthy. But she hasn’t taken the child to medical center because of the fear from her husband. On Sunday morning she intended to go to his father’s home that she observed that the child fell on the ground. She with the help of the neighbors took the child to the hospital. The couples’ parents and their relatives are also inquired. But each of them (on the benefit of one of the couple) has accused the other one in this event. Of course some of the relatives, specially the father and the grandfather of the man didn’t confirm the moral characteristics of their son. They expressed that non-of the couple had competence to take after the infant.

The neighbors also didn’t have any exact information about the adventure. Paying attention to the accusation which was attributed to the couple, the court issued writ of pledge that they were released by giving the pledge. Considering the opposite statements of the infant’s father and stepmother and paying attention to the fact that the offense has happened inside the home (out of other’s vision), the court recognized that it is necessary to investigate completely about the accused’s mental, social, and moral records. Considering the fact that the infant’s father himself is accused to premeditated assault and battery against the child, the court determined the infant’s real mother (the accused’s old wife) as the guardian ad litem. The infant was delivered to her temporarily. Consequently, the guardian ad litem complained about the infant’s father (the first accused) for his premeditated assault and battery. The couple and the infant were frequently introduced to the medical jurisprudence. The collection of physician’ opinions is as follows.

After simultaneous incoming injuries and the their stresses, the infant is involved in convulsion and decrease of soberness. Consequently, he is confined to bed in the hospital. The infant’s injuries are as follow:

The black effects on right leg left knee, on the face, around the eyes, and right shoulder. The biting effects on the left forearm, left arm, left wrist, right forearm, the left side of the neck, chest, back of the body, cerebral hemorrhage, fracture of left ribs No. 9 and 10.

The result of the research about Mrs. Akram is as follows:

She has already married a person called Mr.[…] in 1371. In 1377 they separate form each other with mutual agreement. Moreover, the common child (a two-year-old boy) has been delivered to his father (by mutual agreement). She has expressed that her husband’s bad behavior and morals were the reason of divorce. The old husband of the mentioned female didn’t cooperate in the investigation. The relatives and neighbors say that she has good behavior and morals. After the mental examination of the mentioned female, the medical jurisprudence’s psychiatrist commission announced that she probably becomes angry and behaves rudely.

The result of the research about Mr. Mahdi is as follows:

He has married he cousin in 1376. He didn’t have a fixed job during his marriage time. Without his parents’ information, he even gave one of his kidneys and obtained one million Toomans. His old wife and his family expressed that he had bad behavior and morals and beat his wife and child. He has even threatened his wife with a knife to sell her kidney. According to the content of the accused’s cases which are in the justice administration of Ali-goodarz City and their copies are included in this case), Mr. Mahdi was sent to prison for the reason of premeditated assault and battery which result in fracture of his mother in low’s hand (i.e. her aunt). Consequently, he was released because the complainant announced that she forgave him. Finally, in 79.6.28 the divorce judgement (with mutual agreement) was issued by Ali-goodarz justice administration. They agreed that the father took after the child. Of course Mrs. Soghra has stated that she has delivered the child to his father by force. She has visited the child (with many difficulties) only 2 or 3 times from the divorce time to the time when the child has been confined to bed in hospital whereas the right of visiting the child has been mentioned in the court’s judgment.

By examining the accused’s place of work, it was distinguished that he has been employed as a driver in […] sport cultural club for about 2 months. The club personnel were inquired. They expressed that the accused didn’t enjoy a suitable nervous balance. Even, one of his colleagues specified when he has played a trick for fun, Mahdi has become angry and bitten him.

The physician of medical sport clinic expressed that Mahdi has referred to that center for several times and has received some Diazepam tablets and ampoules. The person who is in charge of the related section expressed that the accused had an accident during a mission, 3 days before this event, as a result of nervous mood. (Now, the automobile is in the garage too.) According to the opinion of medical jurisprudence’s psychiatry commission, which is composed, of three psychiatrists and a psychologist and an expert, the accused doesn’t have any madness or sense disorder. But he has some records of disorder in behavior and personality that they can create or intensify the family differences. The court asked the medical jurisprudence to announce its opinion about this fact that who has bitten the infant’s body. The medical jurisprudence announced that by adjusting the distance of the accused’s front teeth to the place of biting, the biting effects on right leg and left arm can be related to Mr. Mahdi (infant’s father). Mrs. Akram claimed also that several days ago, she was beaten by Mahdi and involved in fracture of nose bone and teeth. She was introduced to the medical jurisprudence and they confirmed the fractures and announced that the fracture was new and they have been created by a hard substance. O course, the accused (Mahdi) expressed that his wife has had stubble out of the home that he can’t state the main adventure because of some (social) problems. After finishing the primary investigations, to perform the article 177, section of public and revolution court’s judgment procedure law in criminal affairs, the court issued and appointment to examine the case. The appointment was announced to both parties. In the judgment session, Tehran justice administration deputy (as the representative of public prosecutor) complained about Mahdi (infant’s father), by presenting some verbal explanation and a draft, he requested the court to issue a judgment to punish the mentioned person. The infant’s mother was determined as a guardian ad litem and her attorney complained about him and requested his punishment. In the court, the accused her wife (the second accused0 to premeditated assault and battery. According to the mentioned process about the accusation of the first accused, Mr. Mahdi based on several assaults and battery relative to his three-year-old infant called […] and paying attention to the following reasons and evidences: [firstly, the complaint announcement of the public prosecutor’s representative and consequently the complaint of the guardian ad litem, secondly, the medical jurisprudence’s certificates included in the case as mentioned in detail, specially the medical jurisprudence’s opinion about the doer of biting (which the accused has been recognized as the doer of the action), thirdly, the existence of disorder in the accused’s personality and behavior, without having madness or sense disorder (which this subject has been explicitly mentioned  in the medical jurisprudence’s opinion), fourthly, the unsuitable moral and behavioral conditions in work place – specially biting one of the personnel which shows that he is very angry-fifthly, having some records in premeditated assault and battery relative to his old wife and the mother of his old wife (his aunt) that resulted in fracture of her hand and probably, doing premeditated assault and battery relative to his present wife (according to the medical jurisprudence’s opinion included in the case), sixthly, the accused’s statements which are in justified and contradictory and his unjustified defenses in primary investigations and also in the court, and denying all the cases which were attributed to him by documents, seventhly, other evidences included in the case specially the cases which has been specified in the delivered draft by the public prosecutor’s representative], the court has understood that the mentioned accused has frequently done some premeditated assault and battery relative to his infant. Therefore it is obvious that the mentioned person has committed the above offenses. Based on the article 614 of Islamic punishment law, the accused is convicted to bear 2 years of imprisonment (computing the days of previous arrestment) because his action has caused disorder in the protection of society and it is probable that he and others become bold to do the same actions. From the private aspect of the offense and the infant’s injuries, according to the articles 480 (section 1), 481,484 (sections B & D), 437,436 and 495 of Islamic punishment law and considering the articles 295 (section), 297 and its note, 302 (section A) and 304 of the mentioned law, the accused is convicted to pay blood-money according to the price (blood-money) which has been considered for each part of the body. The accused the kind of the blood money. He is obliged to pay the blood money to the victim during a year. Paying attention to the age of the victim and until decisive determination of infant’s guardianship and fostering by the family court, the court obtains the blood money and deeps it in a bank account. The blood money will be paid to the infant’s guardian ad litem to provide the expenses of his protection and training.

About the accusation of Mrs. Akram, paying attention to the accuser’s denial in all stages of investigation and examination and ordinary researches by the court, the lack of proved reasons and based on the acceptance principle and principle 37 of the Islamic Republic of Iran’s Constitution Law, the court issued a judgment to the accused’s acceptance. The issued judgment has been verbal. It is capable of revision in the province revision court during 20 days of the announcement date.

The chief of the branch 1109, Tehran public court, 80.9.5

Petition No.: 1149

Case No.: 17/80 T/617

Forum: The branch 17 of Tehran revision court

Signatures:

The Plaintiff of revision: Mahdi with the attorney ship of […] – Saadat –abad St.

The defendant of revision: Soghra-Jajrood…

The object of revision: Petition No. 1448, dated in 80.7.21, issued by the branch 1109 of Tehran public court

Proceeding: Examining the case and its content, the court announced the end of the judgment and issued the following award.

The court’s judgment

Considering Mr. Nasrollah’s revision request by proxy of Mr. Mahdi, against Mrs. Soghra and Tehran justice administration’s petition No. 1448, dated in 80.7.21 issued by the branch 1109 of Tehran public court based on the revision of plaintiff’s conviction to bear two years of imprisonment (computing the previous days of arrestment) and to pay blood-money and compensation to his infant [..] (3 years old) during one year from the date of performing misdemeanor, the court rejects the revision request and confirms the issued petition. The court judgment is decisive.

___________________________________________________________

Justice in Islam 

By: Abbasali Alizadeh

 One of the most important discussions about which the majority of Islamic supreme jurist have agreed about, is not giving permission for referring to oppression judges because the main principle is that their quotations can’t be justified.  

But what are the evidences: The evidences are divided into 4 quotations as follow. 

- Quotation No.1: Some believe that referring to them is to help to do sin.

- Quotation No.2: Some believe that referring to them is reverence of their mottoes, which have been strongly forbidden in Shiite religion.

- Quotation No.3: Some of the supreme jurists say that referring to them and receiving properties and rights by their rendered judgments is forbidden and unlawful.

- Quotation No.4: Some supreme Islamic jurists say that the case of referring to them is an obligatory negation. 

           No matter which of the quadric aforesaid quotations is considered. We follow the case itself and its religious reasoning.

           For proving this case, we should explain the importance of judgment as far as possible. 

The Almighty God has talked in a verse about high position of judges and addresses them as his own substitutes .in another verse, the Almighty God tells his messenger that the important affair of the judgment hasn’t be given to him, but also he must follow divine guidance and obey the right, in order to threaten and prohibit criminals and emphasize on the execution of right.

The holy prophet (peace be upon him) recognized the responsibility of judgment very important and dangerous and introduced it such as suicide .  

Paying attention to this importance, Imam Ali, the chief of the judges tells Shorayh (a judge) that the fortunate and blessed judge is the prophet or his substitution from according to Islam.

What does really Islam say about the judgment, which is recognized so important? Why does Islam forbid people to undertake the duty of judgment?

There is a tradition from Imam Sadegh (peace be upon him) in which the judges are divided into 4 categories. It indicates that one who judges rightly but does not know that it is a right judgment, then he shall be punished by the Almighty God. Only the judge whose judgment is based on right and science is saved and blessed.

Imam Ali (peace be upon him) addressed Malek Ashtar by a governmental instructions that: “choose the best person to judge between people. He must be such a person that isn’t limited by judicial affairs. The parties can’t make him unhappy or angry. He must not insist on doing wrongs. He must not feel unhappy to return to the right when he recognized it. He must cut off the band of greed and don’t fear from losing material interests. He must research and look at the subject carefully and doesn’t issue the judgment by superficial look. In Islamic government the judge must be cautious about doubtful cases and refuse to issue a judgment about them unless he discovers the truth. He must be skilled about obtaining and understanding the reasons and documents. He must be patient in order to discover the truth, and must not get tired of the parties’ referring to him. In the case that the judgment was issued, the judge must execute it without delay, and must not be influenced by the praises and flattering.”

Pay attention that if these instructions are executed and a judge with above-mentioned specification judges, can anybody claim that the claimant or the losing party has been opposed to oppression? The innocent Imams (peace be upon them) have issued these instructions in a time and condition that the human society suffered from prejudice, slave selling, and difference between human classes. The more important point than the instructions is that Imam Ali himself tried to do so.

There is story here about Imam Ali in this regard. It has been said that a man complained from Imam Ali at the age of Omar, the second Islamic governor after the holy prophet of Islam. In the trial, Omar addressed Imam Ali by his title, but addressed his opponent by his name. Therefore, the sign of anger and unhappiness appeared on his face, because at that time, people addressed each other by their titles in order to respect others. Omar asked about the cause of his unhappiness. He said that the right was that you addressed me like my opponent by name. This advantage isn’t desirable in Islamic trials.

There is another story in this regard. It has been said that Imam Ali appointed Abol-Asvad Deali as a judge. After a time, Imam dismissed him from his position. He became unhappy and asked for the reason. Imam answered that he had talked to the complainant loudly.

Since judgment is very important according to Koran and the holy prophet way, therefore, the grate Islamic jurists have discussed whether a non-jurisprudent person can undertake the duty of judgment. Some of them such as Imam Khomeyni believe that the judge must be an Islamic jurist.

What is jurisprudence?

Jurisprudence means a scientific ability by which man can obtain the divine rules from main sources (Koran and prophet’s way) and understand them.

Who is the jurisprudent?   

The late Shahid Sani recognized jurisprudence as a judge’s requirement. He states that becomes jurisprudent in the case of following conditions: having discourse, and syntax science, knowing jurisprudence principles, etymology, word science, and logic.

 The four parts principles are as follows: Koran, prophet’s way, consensus of opinions, and wisdom. The late Shahid Sani doesn’t believe that obtaining the above-mentioned conditions is enough for jurisprudence actualization and says: jurisprudent is a person who possesses these specifications and enjoys such a scientific power that he can extract the secondary problems from the general principles.

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Statistical performance of Tehran province

 All the received files are one hundred and 14 thousands and 466 items in Jan. of the current year. This range increased 10 thousands and 505 items in comparing with Dec. of thereof year.

 Also, the total finished files are one hundred and 17 thousands and 864 items in Jan.  That increased 6434 files in comparing with Dec.

 The total performances and the present file reduction in Jan. 2001 in comparing with Dec. had a reduction of 4066, which reaches 3398 files. With regards to the presented statistics by the deputy to the general chief of the Justice Administration of Tehran province, the difference of the received files between Jan. 1999 and 2001 is 15 thousands and 570, teems and closed ones difference is 10 thousands and 850 files.

 The referred files in Jan.2001 in comparing with the same as 1999 and 2000 had an increase of 36 and 16 percents respectively and the ----- closed files in Jan. of the current year as compared with the years 78 and 79 have increased 30 and 10 percents respectively. Among the total issued votes by courts, 61 percents of votes has been confirmed in the court of review, whereas this figure has the decrease of 6 percents as compared with Dec.

Also, 25 percents of the total votes have been violated by the court of review that as compared with Dec. increased 4 percents.

13 percents  of the total votes has been confirmed and 0.1 percents  has been referred to the initial branches because they were not complete.

The most rate files in Jan. of 2001 has belonged to the branch 3 of the public court of Golestan district with 2463 files.

This branch had the most files in the branch 3 of the public court in Dec.  . After this branch, the branch 1715 of family complex in the second grade has the most rate with 1669 files. This is noticeable that the said branch has been in the third grade with 1704 files in Dec.  . Following the two mentioned branches, the branch 2 of Shahriyar as ministration of justice with 1283 files, the branch 13 of the court of review with 872 files and the branch 26 of Tehran revolutionary court with 594 files have been in the third, fourth and fifth grade respectively. Also, the longest time of proceeding the files has belonged to the branch 26 of Tehran revolutionary court with a period of 10 months. The second rank of this classification has been related to the branch 205 of Shahid Beheshti judicial complex, the branch 20 of Karaj administration of justice, the branch 2 of the public court of Nazar Abad district and the branch 16 of the court of review, all of them with a period of 7 months.

The total rank of the province, according to the numbers of active branches and the finished average is as the following: among the judicial complexes, the family complex with 341 finished files is in the first rank and after it, Shahid Mahalati complex with 299 files in the second rank, Sadeghiyeh complex with 244 files in the third rank and Be’sat with 222 files is in the fourth rank.

Among the administrations of justice, Islamshahr administration of justice with 221 finished files the second Shahr-e-ray with 194 files, the third Karaj with 198 and the fourth Shariyar with 189 and among the public courts of district, the first is Golestan court with 308 files, the second Nazar Abad with 268 files, the third Kahrizak with 211 files and the fourth Shahr-e-Qods with 191 files.

Around Table

Legal and judicial commission’s report

Responses to the questions 206 to 219

 There was numerous numbers of remained questions related to a session in 26.7.01 until the last session, which was set up in March. Because of page limitation of this magazine, in this issue, the questions 206-219 have been responded without any description. But question No. 216 is mentioned without the descriptions of all related negotiations because of its great importance. In the next issues it will be printed to join.

Q.206- Can the municipality officers collect the building materials and tools and transfer them to another place, in order to prevent from constructional operations without required warranty  (Art.100 of the municipality law)?

·  The majority opinion – (2001)

  Legislator specifies some duties for the municipality officials according to the article 100 of municipality law. One of them is stopping the disallowed building activities, and performing this duty is sometimes accompanied by the collecting of building materials and tools (enforcement of this duty is not possible in the other way). So, the municipality officials’ measure is allowed in order to prevent the violation of its continuing.

·  The minority opinion:

   What the law specifies for the municipality officials is stopping the disallowed building activities and it is not necessary to take the building materials and tools and it does not have the legal permit.

1- In this case, it is asked the judiciary power for some information and its responses under the number 1.1269 M 70.8.11 is as following:

  In the answer to the inquiry No. 1.3.34.15558 dated 17.7.1370, it is declared that: By virtue of the article 100 and its note 7 of the municipality law, the municipality and its officials have the allowance to stop building activities of the buildings which have no license or are contrary to the license contents, so, whenever, the mayor or deputy director or a responsible person who has the permit from the mayor recognizes that the landlord violation is certain, they can issue the prevention order of the building activities and if it is necessary ask the disciplinary officers to enforce it. In this case, all the prevention measures of building activities (such as possession of building materials, sealing the erected construction in each stage and the prevention of the tools usage…) are allowed. But the excessive measures such as attachment of tools and the materials, collecting machinery and carrying them to the other place and arresting the construction agents and…. are out of judicial interpretation of law as prevention of continuing the building activities, which are without permit. It is distinctive that if the municipality authorities and executive bailiffs’ measures are according to the above standards, the judicial authorities do not interpret them against the law.

Signed and Sealed by: Executive deputy of the Judiciary power chief

Q.207- By virtue of the Art.28 of the lessor and the lessee relationships law, approved in 1997, it was assigned that the lessor should refund the determined payments to Justice Administration’s monetary fund or pay it to the lessee in cash within 3 months from the notice date of certain judgment. Otherwise, the said judgment shall be invalidated. Whenever the initial judgment is notified to the two parties and  in assigned respite, and there would be no rehearing on it, when would  the assigned  deadline of three months start?

·  The majority opinion – (2001)

     According to the Art.28 of the lessor and the lessee relationship law, approved in 1997, the lessor should refund the determined payments to Justice Administration monetary fund or pay it in cash to the lessee within 3 months from the notice date of certain judgment. The notice, which had been issued before the termination of review deadline, would not be the final judgment. In addition, the date of notice to the offender party and to the defender party may be different. In this case, the date of verdict certainty should be determined with the consideration of the last notice and it may be relevant to the lessee notice and the lessor does not have any information about it. So, after the verdict certainty, the lessor should be informed and his related legal duty will begin from that date.

·  The minority opinion:

     After the judgment issuance and its notice, and with the expiration of rehearing deadline, the judgment will be final. The court has no duty to  re-announce the judgment and also it is not usual.  The lessor should refund the determined payments to Justice Administration monetary fund or pay it in cash to the lessee within 3 months after the receipt of judgment notice and from the date of termination of the rehearing deadline (judgment finality). Otherwise, the evacuation judgment shall be  invalidated and nullified.

 Q.208- can the completing penalty be suspended?

·  View of majority (2001)

   The completing penalty determined in the Art. 19 of Islamic penalty code is considered as a preventive penalty, and it is the subject of Art. 17 of the same act. It doesn’t have any difference with major penalty, considering the suspension from implementation of punishment. Hence, court may suspend its implementation in consequence of major punishment.

·  View of Minority:

    Additional punishment will be fulfilled when implementation of major penalty on offender does not suffice. When court does not allow the implementation of major penalty (which shall suspend its fulfillment under some few conditions), mainly there is no cause to complete by completing punishment, so the possibility for its suspension can’t be discussed.

Q.209 – If a plaintiff in issuing dishonored check, applies for leaving trial, by virtue of note 1 of Art.177 of proceedings codes  of public and revolution  courts ( concerning penal affairs), does following-up of the subject depend on   whether due date exceed the period of six months as prescribed in Art.11 of law for drawing check or not ?

·  View of majority ( 2001)

    With regards to note 1 of Art.177 of public and revolution courts on penal affairs, if claimant asks for leaving the trial, court shall issue the writ of null- persecution and this writ is of no effect positively and negatively. Complaining once again will not be considered as the continuation of previous complaint, but it is a new complaint, which should be treated with observance of all prescribed terms of law. So to follow-up the complaint once again, observance of assigned respite in Art.11of law concerning drawing check is required.

·  View of minority:

     If a claimant declares his/her initial petition in assigned respite on Art.11 of law for drawing check, in fact, he/she has done his/her legal obligation and the request for leaving the trial or persecution should not deprive him from his/her right. Therefore in suggestion and following-up the complaint, the assigned respites in Art.11 for drawing check are not required.

Q.210 – Is the authority to review and follow-up the accusation of assistance in kidnapping of country, high court or review court of appeals?

·  View of majority (majority of votes) 2001

    Art.56 of criminal procedural law of public and revolution court has assigned “partners and assistants in crime will be trialed in a competent court for hearing the accusation of main criminal”. In fact, recognizing the assistant’s offense is dependent on the recognizing the offender’s accusation. The philosophy of this subject also exists in hearings of review process. In another words, principal could not go in trial in one court and accessory to be tried in another court, unless this has been stipulated in law.

 Separation of this subject is not allowed in revision procedure (because the principal may be acquitted and assistant tried in another court, these two does not go together). Therefore, both review for principal and accessory to the crime should be heard in one court. If hearing the appeal for review of principal is to be performed in the country high court, the same authority is competent to hear the accessory appeal for the rehearing. 

(It is the same as Art. 228 of the proceeding codes of public and revolution courts on hearing juvenile delinquency.)

·  View of minority:

     The competence of the high Supreme Court in trying for revision of judgment about the losing party is limited to the cases mentioned in clauses of Art. 233 of criminal proceeding codes of public and revolution courts. Since crimes described for assistant to kidnapping is not in accordance with any of these alternatives, hearing on presumption is within the discretion of court of review of appeals.

Q.211 – with regard to the clause (v) of note 7 of the budget law of year of 2001 throughout the country and its relevant implementation by- law:

1st) Which judiciary competent authority is responsible for hearing the

     (Objection ) of employer regarding issued fine writ by Ministry of labor ?

2nd) What is the method of hearing the objection of employer to the fine note issued by ministry of labor (In relation to the non- – permitted employment of foreign citizen)?

·  Opinion of majority (2001)

        Mentioning   “competent court” in clause (V) of note 7 of the budget law of fiscal year 2001 is related to the court and since competence of public courts is more general than other courts and Judiciary authorities, public court should hear the case of employer object in general court, with consideration to the fact that the said crime has not a criminal nature.

         By virtue of regulations related to legal affairs (proceeding codes of public and revolution courts on civil affairs) will be investigated.

·  Opinion of minority:

         Fine determined in clause (V) of note 7 of budget law of fiscal year 2001 is considered as a preventive punishment. Therefore employer protest should be examined according to the punishment regulations.

(Art.36 of I.R. of Iran constitution has assigned that: “ Punishment judgment and the injunction for execution thereof shall be issued through an authorized court and in accordance with law.”)  

Q.212 – If close relatives of a murdered are infants, can national guardianship or their natural guardian has the right to retaliate or obtaining blood-money completely or more and less, with observance of interests of the infant?

·  The majority opinion:

1-On premeditated murder, if some of the murdered’s guardian are adult and some infants, the adults may apply for retaliation with providing the Share of infants of religious blood money, on the basis of the precedent award No. 31-1365/8/20 of public board of the high supreme court (Ref.4).

(Precedent award No. 31-20/8/65: “ Regarding premeditated murder, if some of the close relatives of murdered are adult and some are infants, and the adult appeal for retaliation, they can retaliate the murderer with providing the share of religions infant from religious blood money….)

2 – If in presumption, the close relatives of murdered are limited to the natural guardianship, they have the right to retaliate on to obtain blood money with observance of the infant competence.  

3 – If the avenger of blood is infant, all to have been designated by the head of Judiciary district, can not consider discretion of infants at his recognition and act for retaliation or obtaining blood money, but the head of judiciary power will act according to the circular No. 1 / 80 / 7559- 28/4/1380

(“In Art.52 of penance, retaliation and its regulation” ratified in 1982, the subject was clear, but it is not clarified why it has been removed in the Islamic penal law ratified to the year 1991. It said: “ Whenever avenger of the blood is infant(s) or insane, his guardians  (including father, grandfather, guardian designated by them or religious Judge), may retaliate with observance of infant and insane interest or may change retaliation to the amount of total blood money or more and less. And if the avenger of blood is absent and his absence takes a long time, religious judge shall be his guardian and will take decision in accordance with discretion.

4- But actual dispute, due to silence of legislator may happen when guardian of avenger of the blood (few infants and few adults) may not allow for freedom of murderer, with obtaining blood money. But it should be acted according to the latest valid Judgment pronounced by supreme leader of revolution, Ayatollah Khameneyee that has entrusted the right to select retaliation on forgive with or without recompense on delay according to the interest of the avenger of the blood to the esteemed head of judiciary power, Ayatollah Shahroodi.

6 – Circular letter No. 7559/80/1-28/4/80 of Esteemed head of judiciary power, which has been issued according to the judgment of honorable leader to the Judiciary units throughout the country:

          (Since in cases which all Guardians of murdered may be infants or insane, but all are natural guardians (father or grandfather) and in presumption which all avengers of the blood are infants or insane and in presumption which all of them have no natural guardianship, and Islamic penal codes, especially Art.266 thereof concerning the liability of natural guardian (first case) and right of competent judiciary power (second supposition) has no verdict on retaliates or asking for blood money or making compromise with murderer, and the  supreme Jurists’ judgments are different regarding the mentioned cases, and these differences may  led to diversity of opinion of courts and lingering of proceedings in similar cases, hence, religious advice was sought. therefore, the supreme leader pronounced judgment and his judgment which is as per letters No. 1/79385  in  2001 and 1/79759 in 1991, was notified to the judiciary power as follows:

“  Among all reasons for guardianship of infants and insane guardians, it is implied that guardianship has been forgot for them due to interest of incompetent person who is under the care of a guardian. Therefore in the discussed issue which guardians are infants and insane, their religious guardian should act with regards to their interest and the decision on retaliation, blood money or forgiveness with or without recompense shall be influential. It is obvious that recognition of interests of infants and insane shall be done under overall consideration of aspects, including the fact that whether he is close to the maturity or not. In cases where leader have the right of guardianship for the avenger of the blood, your excellency as the head of Judiciary power shall have the right on my behalf to make decision on the retaliation or forgiveness with or without recompense or act with delay according to the competence of heirs of the claim.”

 With regards to the above-mentioned explanations, the judicial authorities may act according to the Art.167 of constitution and Art.214 of proceeding codes of public and Revolution courts on penal affairs, in the similar cases. In the case where infants or insane avenger of the blood does not have any natural guardian, after fulfillment of primary research, in case that the accusation is attributed to the accused person, a report of the case with mentioning of reasons and the number of the infants or insane avengers of the blood, their age and family status and their life is prepared and sent to the Judiciary power through the head of judiciary district so that he can choose appropriate punishment according to the hearing court.)

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Q.213- If a thief sells the stolen property by means of forging (e.g. by forging unreal invoices), then the buyer, who is ignorant of stolen property, complains from him under the title of fraudulence, shall the seller be punished also under fraudulence offense title?

The majority opinion:

Paying attention to the article 47 of Islamic punishment law, this case is considered as an example of the different committed offences for which separate punishments must be determined. Because, in addition to the offense of robbery, the perpetrator has done another action, which has been specified as an offence and includes its own independent punishment.

 The minority opinion:

The purpose of stealing property is to sell them. It is like the case that a person drinks wine, and he is convicted to bear wine-drinking punishments. But if he doesn’t drink the wine, he will be punished just for the offense of providing and buying the wine that it is an independent offense. On the other hand, it has been specified to interpret the case in favor of the accused. Therefore, it is better to consider these this case as one offense. But, if the robber has forged a document and applied it, he must be convicted to bear the punishment of forging the document. Moreover, article 662 of the Islamic punishment law, pays attention to the buyer of the stolen property not the robber, because the first person, who is aware that the property is stolen, is the thief himself. Therefore, if the legislator wanted, he could judge about the new action of the thief. So the thief can’t be punished for the fraud offense. 

 (Article 662 of the Islamic punishment law states that: “ everybody who is aware and certain that a property has been obtained by robbery, but he gets or hide it anyway, he will be convicted to imprisonment from 6 month to 3 years and whipping (up to 74 lash)”.) 

Q.214- If the property of a deceased person includes only immovable properties, can the claims of division the inheritance be heard in a court?

·  The  Majority opinion – (2001) :

The public court is competent to examine the division claim of the dead person’s property, which is limited to immovable property for the following reasons:

First: the word “claim” has explicitly been mentioned in the question. It indicates clearly that the court is the competent forum to examine the claim and other centers don’t have to do this.

Second: the immovable estate of a deceased includes debts and testament, that the debts haven’t been liquidated. Therefore, except the justice administration’s courts, no other trials can undertake this important affair.

Third: separation (which is secondary relative to division) includes a unique land, which hasn’t been divided between the individuals. But in the division of property, it isn’t necessary that a real estate is divided to two equal pieces. But also the change must be done by obtaining the expert’s opinion, because there are cases in which the immovable estate of the deceased is not dividable. Therefore, the non-litigious law has presented the division of the estate not its separation, whereas, the legislator has paid attention to both of them.

The minority opinion:

 It is obvious that the immovable estate of a deceased is in common between the legatees. So they possess joint ownership over the mentioned estate. Therefore, whenever the legatees agree, they can divide the estate between themselves. Even they can entrust the registration administration with doing this important affair if they have desire. In this case the registration administration is obliged to determine the shares of the legatees according to the law.

First reason: article 1 of the law of joint estate’s separation is public. It means that if a real estate is in common between several persons, it must be separated according to article 1 of the above mentioned law. It includes the division of immovable estate of a deceased too.

Second reason: the division of an immovable estate is the same as its separation and there is no difference between their nature. In the case of any problem about the debts and testament of the deceased, article 606 of the civil law has solved it. On the other hand, from practical aspect, the province revision courts confirm the public trials’ writs of not being competent of registration administration’s examination about the division of the deceased’s immovable estate.

Third reason: another reason is the precedent award No. 3530 dated in 4.4.81, of High Supreme Court’s Full Bench about the division of the absent legatee’s estate, which the court is competent to examine it. This is a special case and doesn’t include the wise and matured legatees.

Q.215- If a lessor had taken an amount of money for renting his/her shop as interest-free loan from the lessee to refund it at the time of depletion, then with the assumption that their contract has been signed after execution of lessee and lessor law, approved in 1997, does the lessee have the right to request for key-money in ruling price at the time of depletion or not?

The majority opinion:

Signing the contract is actualized between the parties according to the article 191 of the civil law. Therefore the main point is the parties’ will. The case free interest loan is different from the key money. The free interest loan doesn’t increase or decrease along the time. But the key money changes. Therefore, if the obtained money has been taken under the title of free interest loan, the lessor must pay the same amount, which has received at the time of signing the contract.

The minority opinion:

The legislator approved the law of lessor and lessee relations in 1997 including “the key money of trade estates that it must be paid to the lessee at the time of evacuation of the subject of lease according to the current price”  

In order to prevent from the lessor’s misuse. Therefore, any contract about trade estate, which negates the right of key money isn’t effective. On the other hand, the price of the subject of the lease increases during the time. This raised price must be paid to the lessee at the time of evacuation even if the parties mention the key money under the title of free interest loan in the contract.

Q.216- Can the amended report subject to Art.184 of the trials proceedings codes of public and revolution courts in civil affairs be reheard or not? Is it included in Art.326 of the same law or not?

Mr. Farahani, Ghods judicial complex:

Most of the colleagues believe that the amended report can’t be reviewed, and article 326 of the above mentioned law can’t be executed about it.

1.According to article 178 of the above-mentioned law, the parties can put an end to their quarrel in every stage of the judgment procedure by agreement. It means that by the parties’ agreement, the claim can’t be examined judicially and the court finishes the examination.

2.According to the article 184 of the same law, after obtaining agreement between the parties, the court finishes the examination and issues the amended report. The content of the agreement letter is regulated according to the above article, and it is effective and valid for the parties, their legatees, and their legal agents. Also it is executed like the court judgments. Paying attention to the phrases “the court finishes the examination” and “it is executed like the court judgments” indicates that the amended report is different from the judgments or writs issued by the court. So by issuing the judgment of the initial court, the examination and the claim isn’t finished.

3.Article 330 and later on, of the mentioned law, is related to the court judgments. Since the amended report isn’t a judgment based on the above reasoning, so it can’t be reheard. For this reason, the article 326 of the same law that is related to public court’s judgments can’t be executed about it.

It is suitable here to mention the opinion of Professor Jafari Langroodi that has been taken from 5^th volume of the legal diploma.

The amended report:

1.This expression which has been applied in Iran civil courts in recent half century, is seen in no legal text. (Articles 629 and 630 of civil procedure law) the amended report is a piece of writing that is composed of two parts:

1st- The first part is a kind of report, which presents the news of the parties’ decision. This report indicates the parties’ agreement and desires for negotiation and making a peace contract.

2nd-The second part of the amended report expresses explicitly the peace contract, which has been mentioned in article 752 of the civil law. In this contract, the claim is put away completely or partly. Anyway, the amended report negates the subject of the claim before starting the examination by the judge or before finishing it. It means that the amended report doesn’t give opportunity to the court to issue a judgment.

2. in spite of the above mentioned explanation, the consultative commission of the civil procedure law has issued the following opinion:

“Article 43 of the civil procedure law specifies that the conflicts, which are related to judgment execution that are appeared by the ambiguity or shortness of the judgment or object of the judgment, must be examined by the court which has issued the judgment.

3.Of course, in the case that a peace happens between the parties out of the court, and the parties don’t agree with each other about happening the peace, the court examines the case. If the court recognizes that a peace has happened, the court announces that the peace has happened by issuing a judgment. It is a judgment not an amended report.

4.The petition of third protestor relative to amended report isn’t accepted (article 582 of civil procedure law), because the amended report is neither a judgment nor a writ. Therefore, the opposition of an amended report against another formal document is the same as the conflict between two formal documents.

5.Note 1,part 6 of article 12 of the articles’ correction law of arbitration council formation law approved in 9.4.69 states that: “the research judgment of province courts and the council decisions about civil claims that have been taken based on the parties’ agreement, are final and enforceable.” This regulation isn’t limited to the arbitration council’s decisions but also the amended report can’t generally be researchable and sent to the Supreme Court.

6.The amended report is a formal document, which requires a peace contract accompanied by special ceremonies. The formal document of unregistered estate isn’t considered as formal document relative to third person’s protest.

Mr. Sarvi, the justice administration of Varamin:

Apparently, most of the colleagues believe that the amended report isn’t a judgment. But it is the reflection of the parties’ agreement, which is regulated by the court. In fact, the judgment is the court’s opinion, which is imposed on the parties. In my opinion, the legislator has wanted to guide people making agreement and has strengthened and guaranteed it by the execution of its content in the justice administration. For this reason, the legislator has anticipated the subject of agreement in the procedure law. Therefore, if we take the amended report as the reflection of the parties’ agreement, it isn’t included in the judgment and article 326, and can’t be reviewed. It is just possible that some mistakes have been made during regulating the amended report that the same court can correct them.

Mr. Zandi’s question:

In the case that there is a problem in the amended report, is the problem removable?

Answer: the claimant can ask for the cancellation of the amended report by a petition.

Basically, we can present the subject of revision in the case that the object of claim is specified. The standards and amount of the claim object must be specified, whereas in the amended report they aren’t specified. 

One of the colleagues: the decision, which has been taken under the title of amended report, is based on the contrastive confess that the parties have expressed relative to each other. So, this subject can be included in the instances of article 331 of the public and revolution courts’ procedure law in the mentioned affairs. About the second part of the question, I believe that the amended report, which is issued based on article 331, doesn’t have any conflict with article 326 of the above-mentioned law. So the mentioned article can be executed.

Mr. Farahani:

As it was mentioned in the opinion of Mr. Langroodi, in the cases in which there is conflict between the amended report and the formal document, the duty is clear. In the cases that there are specific solution, we must act based on it. So it isn’t correct to recognize a wrong amended report as a judgment.

Mr. Rezvanfar:

A complete discussion has been done. Firstly by mentioning an amended report, we mean a correct not a wrong one. We mean the amended report, which has been regulated according to the law and accepted by the parties. The law says that it is like the judgment. It means that it isn’t the same as the judgment. Moreover, there are two kinds of correction. One of them is to correct the grammatical mistakes of a judgment that this case isn’t related to mentioned amended report. It isn’t very important in the registration of the document. But in the case that the parties go to the court and confess that they don’t have any quarrel and agree with each other, the judge register their agreement. So if they want to protest against the agreement, in fact they are denying their confess. Denying after confessing isn’t hearable. Therefore, the amended report can’t be reviewed. Even if there is a mistake in the amended report, the revision court can’t examine it, because the revision court examines just the judgments and the writs, whereas the amended report is neither a judgment nor a writ. Therefore, if there is any problem, it is inevitable to ask the court to cancel it. Finally, the amended report can’t be presented in the revision courts.

Mr. Zandi:

To answer the first question, I think that there wasn’t any difference between the colleagues’ opinion. All believed that the amended report is the reflection of the parties’ agreement and it isn’t a judgment. Therefore, it can’t be reviewed.

But there was difference in the opinion of the colleagues about the second part. Some believed that article 326 can be executed about the amended report, because in fact the parties’ will be reinforced by the final decision of the court, and they can be considered as other court’s judgments.

The majority opinion:

The amended report, which is the subject of article 184 of the civil procedure law approved in the year 2000, is the reflection and news of the parties’ will. The court doesn’t basically issue the judgment based on the content of the agreement letter. But the judge just registers the obtained agreement. In the case that articles 330 to 332 of the civil procedure law has specified that the “courts’ issues” including judgments and writs can be reviewed, consequently, the amended report can’t be included in the regulations of article 326 of the above-mentioned law. Therefore, if one of the parties claims that the content of the agreement letter has been cancelled, or denies the correction of the agreement, which has been made out of the court, the claim must be referred to the same court so that the court examines the case and issues the judgment.

Q.217- Whenever for the accused freedom a person gives a security, shall it be refunded after death of the security giver or not?

The majority opinion:

The writ of providing guarantee, which is the subject of article 132 of criminal procedure law approved in 1999, is a kind of legal institution and it is different from the guarantee and mortgage contracts mentioned in civil laws. Based on this article, if the security giver dies, executing the ceremonies of article 140 of criminal procedure law (such as giving warning to the security giver, notifying the warning, giving extension to the security giver to deliver the accused, attachment of the mortgage based on the chief of the judicial domain) becomes impossible. Therefore, the attachment of the mortgage doesn’t follow the public rules and will exclusively be done “according to the regulations of this law”. Moreover, the security giver’s obligation isn’t transferable to his legatee.

The minority opinion:

The legislator regards “the financial credit” of the security giver by issuing the writ of providing the mortgage. The writ of guardianship also is a kind of provisional remedy, which is related to the “individual”. So the death of the person doesn’t cause the writ to become ineffective, unless in the case that the contract is related to the individual. Therefore, it is clearly understood that there is a basic different between the guardianship and mortgage contracts and it is taking financial mortgage from the security giver. Also pay attention to part 2, article 869 of civil law the financial obligation of the deceased is transferable to the legatees. Moreover the writ of providing security is exactly as the guarantee contract. Therefore the person who gives security, in deed he under takes to pay the debts at this payment obligation is transferred to the legatees by the death of the security giver. For the confirmation of this idea we must pay attention to the consultative opinion No.7/7254 dated in 28/10/01: “in the case of security giver’s death, after the executing of article 140 of criminal procedure law and proving the infraction at the time of his life, if the guardian or the security giver possesses the property, the amount of mortgage is separated from his property like death. The mortgage isn’t refunded to the legatees after the death of the security giver and legatees must undertake the obligation.”

Q.218- The initial court by virtue of Arts. 714 and 22 of the Islamic penal law has assigned cash penalty for unintentional murderers. Then, this matter has been requested for rehearing by petitioner. So, could rehearing court aggravate the offender’s punishment (or change it to imprisonment) by virtue of Art.258 of proceedings codes of revolution and public courts or not?

The majority opinion:

Regarding article 258 of criminal procedure law approved 1999, the revision court can not aggravate the offender’s punishment, but it has permission to decrease the determined punishment issued by initial court. Therefore it is obvious that every initial court must have determined the punishment less than its least legal punishment, based on article 22 of Islamic punishment law, regarding extenuating circumstances. But, according to article 258 of criminal procedure law, the revision court has authority to correct the initial court’s judgment regarding the following conditions:

1- When ever the initial court determines the punishment less than the least legal punishment.

2- The claimant or authorities mentioned in article 235 protest about the initial court judgment.

Therefore the revision court can not change the punishment of perpetrator of unintentional murder (i.e. cash fine) to imprisonment (which is more severe than cash fine).

For example if the initial court determines the punishment of fraud less than one year, since the punishment of the fraudulent has been determined equal to 7 based on the law of intensifying of the punishment of the perpetrators of swindling, and bribery approved in 1988 by the expediency discretion council of the regime, and according to note 1 of the same law, the court can decrease the punishment of the perpetrator by applying the extenuating circumstances. Therefore, determining the punishment less than one year by the initial court is against the law and the revision court must correct it. This correction isn’t interpreted as intensifying the punishment.  

Q.219- Shall a dateless check-drawer be under prosecution and punished or not? If yes, then which article includes his/her action?

·  The Majority opinion:

  A) By virtue of  the reasoning derived from Art.2 of check drawing         

    law says : “ … or  due to any reason  which may lead  to check   

   Clear or non payment of it….”, blank dated checks are recognized as dishonorable checks and consequently the person who has issued such a check shall be prosecuted and punished. Therefore the actual measure for definition of punishment for blank dated check-drawer is  “ having or not having the amount in cash in his/her account. It means that if the person has enough money in his account, he isn’t deserved to be punished.

2nd)The individuals who believe that drawer of a blank dated check should be prosecuted and punished, depending on the case and by virtue of Arts.3 and 7 of check drawing law or Art.13 of the same act, submit on it.

·  The Minority Opinion:

     Not mentioning the date of check makes it non-prosecutable according to criminal aspects because writing the date is one of the essential and important matters of check drawing by virtue of Art.311 of trade law.  Nonetheless, the legislator has included all items of Art.12 of check-drawing act approved in 1976 into Art.13 of new act (approved in 1993) so, he did not mentioned the phrase “ Without date”.              

          Therefore, this legislator’s reasoning indicates the penal characteristics of these kinds of checks, i.e. they shall not be included prosecution and punishment according to penal affairs.  

A report in January 2001

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The end of an adventure story

Subject :  One of the most scuffling judicial files of the U.S. which was  bombing  in Federal building  in Oklahoma city in the U.S.

 Who was accused in this concern? Timothy Macway, born on 23.04.1968 in Pendelton district in NY was known as the accused related this bombing.

 Accusations: He exploded a bomb opposite to Oklahoma City federal building on 19.04.1995. The bomb was a combination of chemical compost and benzene, which was, placed in a van-truck and due to that explosion 149 adults and 19 infants were murdered.

 But what was the story of adventure? With regards to the consequences of this event and numerous numbers of the murdered, FBI began his group and team working for its investigations concerning this event. The prosecution began with the van-truck holding the bomb. These investigations resulted very soon. Nonetheless, regarding this fact that the person who had rented the van-truck was used to apply forged ID, so FBI investigators began their work from the initial point.

 Assigned punishments :

1. What is General punishment for such an accusation?  By virtue of the court’s judgment, It was assigned to execute Macway on 16.05.2001 by inoculation of toxins in Trahout federal prison of Indiana State. But due to confession of FBI  in the earliest May and the accused  file contents  were not shown to his lawyers completely , so by the order of the U.S. attorney-general ,

the execution  was delayed for one month .

 2. What was his final assigned punishment? Finally, on 11.06.2001, he was executed by toxin inoculation and his death-body was buried without sculpting on the basis of his own request.  

 Comments on this case :  After  destruction  of the federal building  , the U.S. interior ministry and  attorney-general   doubted and accused the foreign conspiracy  services as the main sources of this event . Also they announced possible revenge from Libya and Iraq  .The U.S. mass media encountered with foreign agents in thereof event as a prejudice (Pre-planned accusation).

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The criminal family of the U.S.  President

  Subject:  Arrestment of Noel Bush in January 29^th in the recent Christian year. Which was one of the most eye-catching programs in the U.S. mass media which her arrestment was contemporary with the annual speech of the U.S. president in a congregate subject to unity speech, thus her accusations were merged from the public opinion.  

   Who is Noel Bush: Ms. Noel Bush is the second daughter of Jebb Bush, Florida governor, and also the niece of George Walker Bush, the U.S. president.  (George (Herbert Walker), born 1924, U.S. politician: vice president 1981–89; 41st president of the U.S.

      1989–93.)

  Accusations:  Forging medical prescription for buying strong sedatives and addiction. Noel’s lawyer with surrounding of her client right concerning acceleration on his/her client’s trial requested from the trying court to delay trying up to the end of the client’s addiction quit which was accepted by the trying judge. Then, She should have been stay in a addiction-quit special clinic of Talahasi (Talassio). William Leg, the public prosecutor of Leon district in Florida state emphasized that after finishing her treatment process, she shall be present in the court dock for trying her file, but after order issuance of the judge including her temporary freedom. 

  But the story of adventure: In the morning of January 29^th, Noel Bush entered with her own car to the yard of a Miami pharmacies and with deliverance of a forged medical prescription was going to XENIX (Alprazolam) and due to her unusual behavior, the pharmacy officials doubted on her and requested her to explain the reason of prescription of Xanax for her. Then, She introduced herself a physician and after encountering with some other questions with presence of the police, she was requested to deliver her medical prescription (which was a forged one) .

  Assigned punishments: Forging medical prescriptions is an offense which may lead to render judgments of imprisonment up to 5 years and cash punishment equal to $5,000.00 which has been made legislator leave judge to determine the punishment and execution way of the accused.

The assigned punishment for such an offense for the first time would be referring the accused to the special court of drugs and the accused should participate in training classes. After addiction-quit from the accuse, the penal accusation and claim shall be waived and without embodiment in the closed file of the accused.

 Jenna and Barbara’s accusation stories: It was the same as the above-mentioned adventure story except that their forged prescriptions were about Alcohol and these two sisters are also daughters of the U.S. president.