A SELECTION OF LATEST LEGAL APPROVALS  

A File which had not any legal warranty to be presented in discretionary punishments organization 

The rendered judgments relevant to goods and foreign currency smuggling are final  

·  The rendered judgments relevant to goods and currency smuggling are final and not rehearing

  In the mentioned act, approved in 1995 by the Islamic expedition council it has been mentioned that trying files subject to this act is out of proceeding regulations and rehearing. Due to precedent in rehearing way in judicial courts, the relevant instruction by judiciary power would be prepared within 2 weeks and will be noticed to the related centers. 

  In prepared by-law, which was approved by that time’s head of judiciary power, the explained judgments were declared not to be reheard despite the accusation’s extremity. Regarding this fact, the new designated esteemed head of judiciary power cancelled Arts. 11, 12 and 13 of the instruction which were non-rehearing, and stated that the mentioned judgments must follow the public regulations and other penal judgments. This decision was indeed a real and right one because one of the competent courts which can try the files related to smuggling goods and currency is discretionary punishments organization which is a non-judicial organ and is working under supervision of executive power.

   The trying authorities, here, are not judges and by virtue of relevant acts, they are not obligated to have judicial conditions. In spite of all these, high administrative court cancelled and terminated the recent circulation by rendering precedent judgment by the head of judiciary power dated 2001.  

The full bench’s judgment 

   The clear points of act of discretionary punishments related to smuggling goods and currency, approved in 1995 of the Islamic expedition council clarifies the immediate necessity in trying and final recognition of situation for smugglers of goods and currency and mentioned offenders in a certain period of time and is derived from summing up Art.4 of the act and 2 attached remarks, especially the clear form of remark 1 concluding proceedings regulations and rehearing procedure. This is why competent judicial courts are to act out of relevant rules to proceedings regulations and rehearing procedures, submit for rendering judgments to finalize it, within one month from receipt of petitions and notice the process to customs office and other relevant organizations. On the basis of aforesaid matters and approved instruction to try for mentioned offenses of the subject to remark 1 of Art.4, would not be a reason for rehearing of rendered judgments. The amended instruction dated 2000 of judiciary power which has recognized the rendered judgments as penal ones is against the legislated aim and judgment and would be out of mentioned authorities in remark 1 of Art. 4 of the expressed act and with reasoning to the second part of Art.25 of high administrative court.  

·     Note :

  The Art.4 of discretionary punishments is not foreclosing rehearing right from the person who has the legal right but this Art. Clarifies non-rehearing regarding rehearing in proceedings regulations. The proceedings regulations are from instructed laws then totally its contravention necessitates a full clear act. For example stamp cancellation and so on. And its reason was making some offenders in these cases out of legal penalty, so cancellation of this decision would not be a perfect agreement with legal principles.

   It is amazing that there was no defense from or judiciary power’s counselor or representative in this case and instead of confession defense on the contrary of the circulation, it is obvious that with clear confession of petitioner it would not be any reason for more thought.  

   If the counselors believe it, there is no necessity to defend it in high administrative court they can inform it in written notes to the esteemed head of judiciary power to cancel the circulation, himself.

The circulation cancellation or approved regulations would be by the judiciary power’s esteemed head. It is interesting to indicate one of the rendered judgments by discretionary punishments to show the problems made by closing rehearing.  

   In 1998, in extra time of meeting related to rehearing branch, the file of the case was studied and regarding the sum up usual submissions, it renders the following judgment:  

·  Judgment  No.3 :

  The conclusion, which is got at the end of decision, is a preface to study of file No. 202/T/77 and paying attention to total records related to it. So, in order to clarify the case and matter, we should remind all its contents and recordings. Therefore in order to clarification of the case we should remember the summary of aforesaid cases to make the file in satisfaction of Almighty God and competent with concurrent rules:

  The appellant is Mr. “A.N”, the son of: Habibollah, holder of ID card No.… Issued from…. It is concluded from total papers of the file that a contract in 1995 had been signed between the two parties and the appellant had been expressed as a contractor party, with subject of purchasing and delivering 1400 tons of chemicals and the dispute term has been filled as dissolution friendly and otherwise dissolution by an agreed arbitrator (award). 

  A petition was delivered to court mentioning that Messrs. “N” and “D.S.”  Have exited some goods from Bandar-Imam customs office and they have taken away a sum of 31,402 million Rials from the company’s fund without embezzlement…. and finally they earned the above-mentioned  money in dollars .  

  The first investigation was done from the appellant without mentioning date and Mr. ‘V” was accused in 1997 and sent to jail with rendering temporary arrestment writ. Later again in 1997 he was investigated for illegal accusation of sale and purchase of exchange in 1997 by the complain of Mr. “N.B.” and he was sent again to the jail as visit-forbidden and due to change of his guarantee of RLS 15,371,520,000 to temporary writ of arrestment and for removing the collusion fright.

   From that date the convicted is still in jail. Also another petition was made by Melli Bank of Iran and supervision deputy upon products and imports against the institute of art and culture development in 1995 in branch…. and suite a file. In those files also due to the fact that the institute has opened a L/C for paper in critical era, the ministry of information complained from that institute and introduce it to the ministry of Islamic guidance and culture. The respondent claims that a German company named S.P.I. had the power to provide needed paper roles of the ministry of Islamic guidance and culture, therefore the paper roles were forbidden to import to the country because of delivering forged documents (upon the accused declaration) despite all L/C openings. So the bank had complained from the institute for non-submission on exchange commitment which its file was in branch…. Ultimately an amount of $1,320,000.00 was liquidated into bank account by purchasing illegal and smuggled currency. Finally the bank declared its satisfaction and rejected its petition.

     But aware from the above-mentioned explanations, we hereby study the file:  

 1- In page 64 of the file it has been mentioned that the institute had purchased illegal and smuggled exchange from Messrs. “J.R.” and “ A.A.” which this report had not been eye catching in the file. (P.64).

2- In page 66 of the file, it has been mentioned that an individual named Mr. “R.S.” had been arrested for sale of exchange out of bank network in amount of $9,250 belonging to Messrs. “R” and “M.T.”, respectively, the head of Haj and pilgrimage organization and managing director of a cultural institute. The purchaser was recognized as Mr. “M”. But in the file there is no result of submissions and cross-examinations about it. For the mentioned individual, the purchaser has rendered a writ of pledge in 1996…. The result of summon of Mr. “R” is not clear, even he had ordered to take Mr. A’s check who was the file officer. Generally speaking the fate of the case is hazy.

3- How it is that we know ourselves responsible to try for purchase of illegal and smuggled exchange but not for its sale in the balance of the purchase amount.

4- Again in 1997 a writ of pledge and RLS 4 billion cash or property pledge was rendered for the accused “A.N.” The file then was referred to special branch…. Of exchange offenses. In page 328 of the file it has been mentioned that the esteemed director of the branch has declared the following after passing about one year of the accused jail. Regarding the accused declarations in branches… and… of discretionary punishments organization and also with regards to the accused defenses concerning importation of paper roles for the institute is acceptable. It seems that the institute is responsible against the central bank of Iran and if it has a petition against Mr. ‘A.N.” It should be submitted through judicial authorities. Although the conveyance relevant to the institute and Mr. ‘A.N.” is observed but rendered writs in the files… and …  are cancelled and the pledge is decreased to RLS900m and the freedom writ of Mr. “A.N.” depends on giving the mentioned pledge from now up to the end of trying the case and rendering the judgment. The accused told that he had given the mentioned pledge for the file in branch 42 but the attachment of documents were not equal to the mentioned pledge so I request to accept the same attachment of documents instead. And it was accepted and he was freed from the jail #209.   

Here we see clear and outstanding contravention of Mr.… in page 334 of the file. I think for the illegal arrestment, the file should have been separated and referred to a competent public court (as the case is not related to administrative offenses and does not include Art.13 of that organization’s by-law). Three days after rendering judgment he declares that the writ of pledge had been RLS 6 billions which is hereby amended.

Firstly, regarding freedom notice of the accused issued in 1998 by Mr. “N.,” why is he still in jail?

Secondly, the decision making of Mr. “N” is by no means an amendment with his explanations concerning pencil cross. And repetitions in three process: one in rendering writ (changing) in explanation to the accused, the process of acceptance of writ of pledge with the amount of RLS 900m, we should know that what is the relationship or writing error between 60 and 90 which made him fell into mistake.  

Thirdly, With regards to writ acceptance which is a kind of civil contract, if he believed that he made another mistake he should submit judgment formalities and again should have rendered the judgment for the accused arrestment and explain all these changes to the accused.           

5- Paying attention to the deliberate submissions on the case, the trial order has been rendered and in 1997 the accused had been investigated. But no decision was made by the branch…. Therefore with numerous correspondences with different discretionary punishments organization after receipt of a letter from secretariat office of judiciary power in 1998, a summon is issued for presence of the accused. 

In 1998 Mr. “Y.,” the esteemed director of the branch explained the accusations to the accused. The type of writing and cross pencil is not clear to indicate what is those explanations exactly but the only clear thing is exiting $12,910 from the country and the other question regarding bank’s letter and revival of the explained writ and notice for prison and…. 

Finally, in 1998 the branch renders its final judgment and decision and the accusation of the offender recognized as non-submission upon exchange commitments with amount of RLS1, 346,400, by virtue of Art.10 of discretionary punishments approved in 1988 and Art.11 of trials instructions for exchange smuggling. Also the file is open for the other aspects of it and it includes the judgment concerning exchange exit and failure to perform commitments towards the aforesaid institute.  

With scrutiny in regulations of thereof organization it is clear that its initial branches are special and except duty divisions among the individuals who are designated to those

branches are not competent with other subjects which are non-competent to that organization. So every branch has authority to try some special cases e.g. a smuggle or health branch would not be competent to examine the files related to exchange and currency completely and those case should be referred to their special branches. Otherwise any initial branch has the authority to try every kind of case. Shortly the rendered and written judgment in1998, without number, which is objected by both parties, petitioner and accused, is also necessary to be quashed on behalf of the accused. Disregarding the bank satisfaction relevant to page 241 of the file, Mr. “A.N” would not be responsible but the institute is the opposite party of the bank, so the accused is acquitted. 

 Concerning exchange smuggle as mentioned in the ministry of information letter No. 79124/M/17/94877/7/15, in illegal sale and purchase and smuggling of exchange, to get all responsibility to purchaser has some critics and this fact that the expressed accused had committed with forged document and… has received foreign currency from German S.P.I. company and failure to perform commitments on behalf the institute and … are subjects for swindling. Finally the judgment was rendered by a branch of public court acquitted ‘A.N.”, the managing director of Pars Nadian Co. and Mr. “MMJ”, another managing director. With their declarations, the subject is followed in Germany. In addition, a file under subject of financial corruption is under investigation by a branch of the revolution court.

 Because of great importance of smuggling exchange and goods due to preservation and protection of the society economic and necessity to legal assertive confrontation with it, it was observed by careful attention of the Islamic expedition council in 1995 and the written approval in 10 articles without announcement in Islamic council assembly, which was titled as a great problem in the councils program. Regarding Art.1 concerning punishment of economical offenders approved in 1990 and penal law for smugglers in 1933 and its next amendment approved in 1974 and amendment to Art. 1 of the same law, approved in 1994, were not concerned to attention to the esteemed branch and mentioned the accused of that branch as the only legal and penal member of Art.10 of the organization. The expressed article is about failure to perform commitments for importers against governmental exchange and services. 

  Therefore, it seems that they have not declared and notified any about goods and exchange smuggle and it is merely about the exit of exchange and finally it is mentioning some about instructions on exchange and goods smuggling trial know-how.  

   The aim of legislator had been about fast decision making about goods and exchange smuggling so despite of essential competence contravention of different authorities, hereby we paid attention not only to revolution courts but also to Justice Administration and discretionary punishments organization or a separate organization which the government would designate for such a reason at its own time. They are authorized to submit on it by government with omitting related formalities of proceeding regulations and approved rehearing for the mentioned aim. In Art.4, it is mentioned that judicial authorities are responsible to receive complains and at last after one month they should render judgments. This file which lasts 2 years from its opening had not any warranty to be processed in the organization from the beginning due to smuggling subject is one of the mere duties of revolution courts and as in remark 2 of Art.4, in the case of non-trial or lingering trials  (trials more than one month) and not rendering final decision for them in thereof period, the organization by means of a single article of its amendments, approved in 1994 by the Islamic expedition council, can request the file from judicial courts and submit as their duties.  For doing it we should tell, firstly, it can be done in locations in which there is no judicial court (such as revolution or public courts) to try smuggling files and secondly, after lingering by initial authorities, it has the right to request the file for trying. So the organization has no right for initial entrance for trials and consequently although the branch has no opinion about it and has no competence to rehear it without initial decision insists. Therefore, the initial guidance branch has no competence to render judgments. In art.4 of the organization instructions referring goods and exchange smuggling and mentioning that these kinds of trials can not be done under rehearing and trial. According to precedent the head of judiciary power has instructed about it and has recognized an article in Art.11 in instruction #14 as final judgment assuming whether the right for objection foreclosing from the accused by a legal instruction or not.

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Religions liberty in I.R. of Iran’s constitution 

 One of the social liberties, is the liberty of opinion and thought. Man should be free in all his living aspects i.e. there should be no obstruction on his way to approach improvement and growth of non of his talents.  

 One of the holiest talents in human, which needs strong liberty, is opinion and thought. Thought is the most important factor in human, which needs growth. Thus, as it is independent from any obstruction, it needs liberty.

 Nowadays, we consider that the most important subject in the world of humanity is thought liberty specially after world human rights notice publication which its preface consists the following:

“ The highest desire of human is appearance of a world of thought liberty and free from fright and poverty. “

  Anyway, here, the mean of thought could be social, political and religious opinion. Therefore, the most important desire of the world is being in a free world to state thoughts by anyone and selection of belief is free for every body.

In the same concern the Art. 29 of human rights notice mentions the following:

 Every body has the right of belief and expression and it concludes from anxiety toward it. It is free to obtain information, thoughts, their receipt, and publication by all means and without borderlines consideration.

 This article in summary deals with the role of religion liberty in I.R. of Iran’s constitution. The discussion is mostly about both belief and religion liberties.

 The mentioned principles consists of the following:

principle  12  

 Iranian official religion is Islam and its official religious branch is  “Jafari Asna-Ashari “ (followers of Jafari Shiite’ with 12 Imams) and this religion is unchangeable forever. Other Islamic religions such as Hanafi, Shfei, Maleki, and Hanbali branches are in full respect. And their followers are free to do their own ceremonies and in their religious teaching and learning and privacy characters such as marriage, divorce, heir and testament and their relevant claims are formal in courts and in their majority locations, the local regulations would be authorized by the councils in competence with those religions and with giving full rights to the other existing religions followers.                   

 principle 13 

  “ Iranian Zoroastrians, Jews and Christians are the only recognized religious minorities groups who, within the limits of law, are free to perform their religious rites and ceremonies, and in personal status and religious teaching, they may act in conformity with the dictates of their own creed.  

 principle 14

 National sovereignty, according to the Koran verse, “ God forbids you not, as regards those who have not fought you in religion’s cause, nor expelled you from habitations that you should be kind to them and act justly towards them: Surely God loves the just. “ (60:8), the government of the Islamic republic of Iran and all Muslims are obliged to conduct themselves with moderation, justice and equity towards non-Muslims and should observe their human rights. The provisions of this article hold called only for those who do not conspire or act against Islam and the Islamic republic of Iran.  

 principle 23

Prosecution of beliefs is forbidden and no person may be penalized for the mere possession of a certain set of beliefs. 

 principle 26 

 The people shall be free to establish religious, political and professional parties, associations and Islamic societies or the societies of recognized religious minorities provided that parties of societies are not inimical to the independence, liberty, sovereignty, national unity of the country nor to the Islamic percepts and the foundation of the Islamic republic. Individuals are free to participate in such groups. No one may be prevented or forced to participate in such groups.

 Regarding mentioned contents of the constitution in the first chapter, especially in Art. 4, which express: “ All civil, penal, financial, economic, administrative, cultural, military, political and other laws and regulations should be based upon the Islamic percepts. This article absolutely and universally governs all other articles of the constitution as well as other rules and regulations, to be decided upon at the discretion of the Islamic jurisprudents of guardianship council.“  

  So, we are going to know that what is the viewpoint of Islam about thought and belief in human societies and the constitutions articles in this concern were considered too.

First of all, we differ between thought and what we nowadays call belief. Because thought comes from wisdom, i.e. since man is a wise creature, he has the power of thought too. Man, because of his thinking to problems discovers facts. Regardless of this fact that his thought is conclusive, reasonable, wisdom-based or practical. 

 The Almighty God has forgiven the power of wisdom to man, i.e. to change unknowns to known. Man, in his birth time is ignorant and by means of thought and learning changes his ignorance to wisdom. Man has the right to think. Even it is necessary for man to think and without it, he would have no real existence.

 Not only Islam has recognized it as an invaluable thing but also necessities it and recognizes it as a pray. Koran is a book, which has dealt with thought more than any religious or non-religious book. In Koran, human has been advised much to think. So has been advised in expressing and tradition books.

 In Islam, there is a principle related to advantages of Islam to other religions. Islam says that we can not obtain belief principles in any way except thought and jurisprudence, i.e. that the person, himself, should understand that the world creator and owner is God by the power of his own wisdom and thought and not by imitation. But sometimes human believes things which their sources are enthusiasms and not thought. But the beliefs of this world’s people are from dependencies and those, which makes man fall into prejudice, pessimism, and inertia. Belief mostly banns the thought. Since the first effect of belief is removing the obstruction to the activity of human thought and freedom. The interest removes and decreases the human spirituality and makes him/her deaf to hear facts. Idolatry is neither thought nor belief but makes strong interest, which comes out prejudice and imitation and is transferred, from a generation to another. Never a thoughtful human can impose him/herself to praise cow or sexual organs, as at the present time, there are many that praise such things. Even the preliminary kind of thought and belief can not meet human to this point. These matters have other roots than wisdom and thought.  

1-  Naml sura (chapter of Koran), V. 78: God has born you from the womb of your mothers however you did not anything at that time.

2-  The holy prophet of Islam, Mohammad (SAW) quoted that: one-hour thinking is more valuable than one year of praying.           

 Rome Sura (chapter of Koran )  , V. 8 :  Did not they think  by their ego that whatever are  in sky

and earth and all among them   have been created  all in justice and right and in its own right limitation,  and many of the people  are infidel  and unbelievers  from the base due they do not  think .  

·   Al-Omran Sura, V. 191: The wise are the people who remember God in any state (in sleep, standing and sitting) and are thinking to the creature of earth and sky and tell: Oh! Almighty God! You have not created this great system in vain. You are holy so aware us from the hell (fire) and be kind to us.

·   Baghareh Sura, V. 219: God has expressed his verses for you clearly to make you think and not use your wisdom.

·   Bagharah Sura, V. 266: God has expressed his verses for you clearly to make you think about fate of the your doings and the fact of affairs.

3-  P. 185 of Rozatol-vaezin quoted from the book of doings and punishments or awards (fates of them).

4-  The wrong in nowadays world is in here. In a hand, some say that the human wise and thought should be free and on the other hand, it is said to free the belief, i.e. idolatry should be freed. But these beliefs are essentially anti-liberty and limits human body. 

Nowadays, for imposing their ideas about liberty in a political regime, some say that: In so and so country, there is 100% liberty, because all the people from God-believers to idol-believers are free in that countries and are also full facilitated to do their own ceremonies. One of the problems existing in Human Rights notice is to point thought and respect to human initially and in consequent ignores from it human respect. Since it is said that the human is respected creature thus, is free to select whatever he wants regardless of this point that the human is limiting himself not others.

 Does respect means to limit human or conducting him to evolution? This is not respect. Whenever he is free that chains of prejudice, myths, and unleashing become free of his/her body. 

 According to Islam and Koran respecting idolatry is not respecting an idol prayer but it is irrespectively human’s prestige. Islamic thought is thought of Abraham (The messenger of God) who remains in the city in an out sight-ceremony of the city people and then in that opportunity he entered idol-house and broke all idols with his hatchet and then he hung the hatchet to the neck of the great idol and exits from idol-house. He did it deliberately to free the thought of people on the basis of clear verses of Koran.

  At that night, when the people came back to their houses, they saw that situation and they saw only one idol, which was the greatest. Then they understood essentially that those idols were powerless to break one another. Thus, they went to Abraham and told him whether you have done it. Abraham told that I did not do that. As you see the offense tool hanging from the great idol and now you are accusing me. Please ask the idols, themselves. With this saying, he made them think about belief and its freedom from myths. 

  The Islam messenger of God (SAW) combated many years with idolatry to free peoples’ thought. He made ignorant Arabs free from those ignorant beliefs. He said: “ Praise your God who made you free from those ignorance ideas through his messenger. “

  In history of Islam has been quoted that in Badr war, there were some captives who were brought to Hazrat Mohammad (SAW) in chain. When Mohammad (SAW) saw them, smiled. They knew Mohammad characters somehow, so asked him why are you doing so, are you taunting us. He replied that it is not taunting. When I think that I should took you in chain to the heaven and I should inoculate the right thoughts to you then it makes me smile.

 Therefore there is a difference between thought and belief freedoms. In Islam, the idea is acceptable and respectable, which is based on thought. But Islam doesn’t accept the ideas, which are based on ignorance and imitation. That’s why the I.R. of Iran’s Constitution Law, which has been inspired by Islam’s laws, has recognized those religious minorities that are based on correct thought. Also, other individuals who have different ideas are respected and Islam hasn’t permitted Muslims to aggress them. By researching about this idea in western societies that human are absolutely free in their ideas, we encounter two main points. The first reason is a reaction to the hard and severe process of Europe in middle ages. At that time, the Europeans were involved in inspection of ideas. The church  

  After all, we can conclude that Islamic regulations are the most perfect ones among the others and have given most freedom and liberty to its existing religions and faiths other than Islam. For proof, we can state that despite minority of religions, but they have full right to select their own representative in the Islamic council assembly and also share in their fate perfectly. 

(Ref. Art.61 of I.R. of Iran ‘s constitution)

   And this is the real meaning of religion liberty.

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Points on initial courts 

 Part of Tehran’s rehearing courts letter to the general chairman of Tehran’s Justice administration 

As you are aware, the public courts undertake the examination affair in preliminary stages. If in some case, they don’t have enough capability to examine the case, it will cause both spoiling the individuals’ right and clients’ and also it causes to pile up the work in the revision courts. Therefore, it causes to employ more human force, and finally the clients got tired and the colleagues can’t reply them too. Therefore, there are some points, which the colleagues have repeated and we mention them separately about the criminal and legal (civil) files as follow.

In criminal files:

First: the criminal files are usually very large. They are sent to the revision court without page counting and sealing wax. This causes the examination to be lengthened.

Second: in most cases it is observed that the notified verdicts haven’t been attached to the file. So it becomes impossible to examine the case in revision stage. In this case, the corresponding of the trial’s branches won’t have any result other than lengthening the examination. Moreover, this case is much true about the files in which the parties are more than two persons, and the issued judgement has been objected by some of them. The revision courts encounters many problems regarding this case.

Third: there are some criminal cases related to premeditated and unpremeditated injuries in which the accused is convicted to pay the less than 1/5 of complete blood money. In spite of being finality of the judgement, it is recognized as the issue that can be reviewed and is sent to the revision court. This causes the files to be piled up in the revision courts and it brings out some problems. This case is seen about other files too that must be paid attention to.

Fourth: it is observed in criminal files especially in the files related to dishonored checks that the initial court’s judge takes an action to issue the judgement by default without determining the time of examination, and inviting the parties to the court. This causes the private complainant to present separately a claim of demanding loss and damage to the court. Regarding the protesting stage of judgement by default, a file practically changes to three files and this case is repeated in the revision stage as well. So it is required that the colleagues issue the judgement by inviting the parties to the court.

Fifth: there are some files with different judgements for the same offense. Regarding the execution of part D, article 184 of criminal procedure law, a combination of these files must be sent to the province court in order to issue a unique judgement. Sometimes it is observed that all the mentioned files are sent to the court, whereas, in this case, it is necessary to collect all the files and obtain the losing party’s explanation and finally send it to the revision court. It is obvious that not doing these ceremonies in the initial stage, it will spoil much time in the revision stage.

Sixth: it has frequently been observed that in criminal cases, after summoning the accused and inviting him to the court, making him understood the accusation and obtaining the security, the court, which has done the preliminary investigation takes an action to issue the judgement of acquittal for the accused. This affair is against the criminal procedure law and can be prosecuted by the disciplinary court.

Seventh: it is observed in some cases that the judge transfers his judicial deputation in order to do some judicial performances, or in the case that file has been referred to the expert for obtaining his opinion, he takes an action to issue the judgement without obtaining the expert’s opinion.

Eighth: not paying attention to the completion of preliminary investigation and collecting the reasons and issuing the acquittal judgement in the cases in which the court must have issued the writ of stopping the prosecution according to the criminal procedure law, causes the revision court issues the acquittal judgement in order to prevent from the breaching the issued writ. Because, it has frequently happened that if the revision court wants to examine the case and collects the documents and reasons, it takes a ling time especially for the reason that the revision court doesn’t have any access to the examination possibilities such as disciplinary force.

Ninth: the documents and evidences, which are obtained from the parties and attached to the file, are mostly without certification and stamp cancellation. Or it isn’t mentioned in the verbal-process that they have been received. So at the time of examining the file, it is required to demand and observed them again. This causes the examination to be lengthened.

Tenth: there is very important case that if it isn’t paid attention to, it causes some damages for the clients and therefore, the judicial system becomes invalid. The case is that many complainants who have legal demanding, instead of referring to the trials and present legal claim and administer of their justice, they present criminal claim. Therefore, the case is referred to the disciplinary domain and consequently the defendant is called there against the law and without committing any offense. After doing preliminary investigations and inquiry of the complainant and recognizing the fact that the subject isn’t a penal case, the file is finished. This operation causes both the individuals’ reputation to be violated in the residence or work place, and the people’s pessimism about the judiciary system. Sometimes, it is observed that the defendant complains reciprocally. Therefore, it causes the examination to the lengthened. In these cases, it is suitable to issue the judgement of individuals’ detention after collecting enough documents.

In legal (civil) files:

Regarding the civil files, there are some points as follow:

First: the stamp of procedure expenses isn’t attached and canceled that this action causes spoiling the right of government and the public treasury.

Second: transferring the drafts hasn’t been done or the files are sent without attaching the received drafts.

Third: without paying attention to the fact that objection hasn’t been done in the legal extension, and therefore, it requires that the writ of rejection for the revision request is issued, the file is sent to the province court. This action causes that the files ply back and forth between the initial and revision courts.

Fourth: in some cases, in spite of being finality of the issued judgement, it is announce that it can be reviewed according to the civil procedure law. This action spoils the right of the protestor concerning the stamp cancellation and other expenses.

Fifth: another problem is the examination of a case related to the property, which must be divided disregarding this specification. The province court encounters difficulty examining this case and it causes the examination to be lengthened.

Sixth: it takes a long time to notify the verdicts and warning notices related to the provinces relative to the claims which are examined in the revision stage. Therefore, it causes to change the examination time and consequently spoil the people’s right and lengthen the procedure.

Although mentioning the above points takes your time, I hope that by your paying attention, supervision and guidance, we witness more effective results about the judgment procedure. At the end it is suggested to establish a department in the revision court in order to collect the judgments, which enjoy unsuitable quality and have been issued by the initial courts, so that they can be used later for raising or changing the judicial positions. May God help you to succeed.

Revision tribunals of Tehran province

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Around Table

Judicial and legal commission report 

Responses to questions No. 220 &221

220- If the check holder transfers his check before declaration of check penal petition and again it is returned to him/her, would he/she have a right to claim a penal petition or not?

 Mr. Kiyazad, Resalat judicial complex:

Majority of the colleagues believes that the check holder doesn’t have right to complain. Firstly, the philosophy of approving article 11 of check drawing law accepts that a check can be punished if it is a fraud. In the case that a person transfer the check to another one, it is considered as an offense. But the legislator doesn’t recognize these actions as criminal one. Secondly, check is special case and by transferring it, the right of loss disappears. Thirdly, the law specifies to interpret it in favor of the accused. Fourthly, in the case that the transference of the check is natural, he has right to complain, otherwise he doesn’t.

The minority of the colleagues believed that the check holder is the person that the certification of not paying the check has been regulated in the name of him. In the case that the check is transferred and then returned to him, the attribution of the holding the check isn’t removed from him. Therefore, he can present a complaint to the court.

Mr. Sedghi, Shahid Mahalatti judicial complex:

All the judges in this complex believe that paying attention to article 11 of the check law, which sates “ after obtaining the certification of not paying the amount of the check, the check holder has right to present the criminal complaint” and regarding the fact that the right of presenting criminal complaint hasn’t been anticipated only for the person who has received the check after returning from the bank (being not paid), the right of criminal complaint is kept for the check holder. Moreover, the cancellation of an established right needs reason not continuation of the old right.

Mr. Parnoori, revision courts:

Article 11 of the check law has determined the duty and states: “the person to whom the check is transferred after returning from the bank”. This phrase is general and the word “person” includes the check holder too. Therefore, in the case that he transfers the check and then it is returned to him, he can’t present a criminal claim.

Mr. Aghazadeh, Shahriyar justice administration:

The majority of the colleagues believed that applying the content of the article 11 of check law, he has this right, because the mentioned article says that the person to whom the check is transferred doesn’t have right to present the criminal complaint not the check holder.

Mr. Favayedi:

We must separate the case in which the check holder has presented a criminal complaint after obtaining the certification of not paying the amount of the check and the case in which the check holder has obtained the mentioned certification but hasn’t complained. As it has been mentioned in article 11 of the check law, in the case that the check holder transfers the check after complaining, it is interpreted as giving up and the criminal prosecution is stopped. But in the case that the check holder transfers the check before complaining, in fact he gives the check to another person so that he applies his influence. Therefore, we must keep his right in presenting the criminal complain.

Mr. Rezvanfar, the judge’s disciplinary court:

 Prohibition and removing the prohibition; prohibition is the case in which two works are done. Sometimes, it removes the prohibition generally and sometimes temporarily. For example, suppose a father who has become sane for a while and therefore, a guardian is determined for his children. In the case that his madness removes, he has the quality of “being a father” and therefore, takes his responsibility again. Regarding the check case, as it was mentioned, the word “person” is general and it includes the first check holder. So if he transfers the check after or before complaining, he doesn’t have any right to complain.

Mr. Moradi, family complex:

We must pay attention to see whether the triple pillars of offense have been actualized or not. The law says that whenever an offense happens, the examination starts by either the private complainant or by the prosecutor. A special situation rules over the check cases. We must regard if transferring removes the right of start and prosecution from the first check holder or not. In law, some rights can be transferred and some can’t. The right of complaining can’t be transferred. The content of the law says that the person for whom the certification of not paying has been issued, can complain, even if civil transferring has been done.

The majority’s opinion:

It is understood from the rules and regulations ruling the check that it is possible to transfer the check to another before presenting it to the bank and obtaining the certification of not paying. But after returning the check from the bank, this transferring encounters limitation. For example, the person who receives the check after returning the check from the bank doesn’t have right to complain. Also, if the first check holder transfers the check after complaining, the criminal prosecution is stopped. Therefore, it is understood from article 11 of the check law that the right of criminal complaining is removed in the case that the check is returned except if transferring is natural. The law hasn’t specified that the first check holder can complain if the check is returned to him again.

The minority opinion:

Transferring the check after returning from the bank, doesn’t remove the right of the first check holder to complain. By compiling this law, the legislator has intended to prevent from champerty and to guide the affairs to correct legal passage. Therefore, this subject isn’t true about the first check holder. Moreover, the cancellation of an established right need proof and reason not its survival.  

221. A person is convicted to unpremeditated murder and the judgement is opposed to revision. In the revision court, it is known that the murder has been premeditated. In this case, what decision must the revision court take?

Mr. Kiyazad, Resalat judicial complex:

The majority believes that the revision court issues a judgement and sends the file to the Supreme Court to be examined in the revision stage.

There are three opinions according to the minority:

1.  The revision court can issue a judgement and it is final.

2.   The revision court breaches the initial court’s judgement and the initial court takes an action to examine the case.

3.   In the case that the revision court recognized that murder as premeditated one, since it is not competent to examine the case, the file is sent to the Supreme Court. The Court breaches the initial court’s judgement and refers the case to another branch.

Mr. Sedghi, Shahid Mahalati judicial complex:

First state: the revision court has right to examine only the judgements, which have been objected. In the case that the mentioned court believes that the murder has been premeditated, or breaches the initial judgement, it must issue the retaliation judgement.

Second state: by breaching the initial court’s judgement, the revision court must refer the file to the initial court to issue a judgement about the premeditated murder.

Third state: paying attention to the precedent award about the judgement of stoning to death and execution (about adultery with a married woman, and pederasty), and regarding the fact that the revision court doesn’t have any right to express any idea about premeditated murder, the file must directly be sent to the Supreme Court by issuing the writ of not being competent. 

The opinion of the all judges of the complex:

Regarding articles 232, 233, and the note of article 240, and article 241, part B of article 257 of criminal procedure law, and article 230 of Islamic punishment law, and considering the fact that the revision court is obliged to examine the judgement about revision. It isn’t possible to refer the file to the initial court to issue a judgement about the murder unless the initial judgement is breached. So the revision court must breach the initial judgement and refer the file to the initial court. The mentioned court must issue the judgement about both kinds of murder regarding article 230 of the Islamic punishment law.

Mr. Beygi, Ershad judicial complex:

The majority believes that in the case the complainant or the initial court hasn’t determined the kind of the murder, the revision court doesn’t have any right to express its opinion about the case. In the case that the initial court has recognized the murder as unpremeditated, the revision court can issue the acquittal judgement by breaching the initial judgement. In the case that the initial court’s opinion isn’t specified, the revision court must give a notice to the initial court to express its idea about the premeditated murder.

Mr. Farahani, Ghods judicial complex:

According to article 230 of the Islamic punishment law, the claimant must determine the kind of the murder from the aspect of being premeditated or unpremeditated. In the case that the murder is proved but the kind of it isn’t proved, it must be tried to give an end to the quarrel between the parties by peace. According to article 230, the law has explicitly determined different suppositions, and the judge must act according to it. In the case that the claimant determines the murder as unpremeditated one, his claim must be accepted, and the revision court must express its idea about the issued judgement according to article 241 of public and revolution courts’ law in criminal affairs. In the case that the claimant says the murder is unpremeditated and then it is known that the murder has been premeditated, the revision court is obliged to issue a judgement if the initial judgement is breached according to part B of article 257 and article 259. It is obvious, if the guardians of the murdered have any complaint can present it again.

The commission’s consolatory opinion:

The majority opinion (1):

Regarding articles 232, 233, note of 240, 241, 257 of criminal procedure law approved in 1999 and article 230 of Islamic punishment law, the revision court is obliged to examine the judgement which has been requested to reviewed. Therefore, by breaching the initial judgement, the revision court must refer the file to the initial court without issuing a new judgement. The initial court must research to determine whether the murder is premeditated or unpremeditated and issue the judgement. Then, the revision court is determined according to the case.

The majority opinion (2):

According to article 241 of public and revolution courts’ procedure law in criminal affairs and notes 4&5 of article 235 of the above-mentioned law, which has given the authority of breaching the initial judgement to the revision court, this court can issue the acquittal judgement relative to unpremeditated murder after breaching the initial judgement and refer the file to the initial court to express its judicial opinion about the premeditated murder.

The minority opinion:

Paying attention to the precedent award No. 6211376/9/4 of the Supreme Court’s full bench, the revision court doesn’t have any right to express any opinion about the “unpremeditated murder” positively and negatively. Therefore, it is obliged to send the file directly to the Supreme Court by issuing the writ of not being competent.

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Statistical performance of Tehran province courts

 Reported by deputy to the general chief of Tehran Justice Administration, the following is a ranking and grading for their performances:  

 Total entered files in March 2001 had been 8, 607 files -Its decrease comparing to Feb.  was: 11747 files.

  Total closed files in March: 109,645 files.  - Its decrease comparing to Feb. was 14,256 files.

  Total performance and minus of the extant of documents in March had been: 1401 files – Its decrease comparing to Feb. was: 2515 files.

   The minus of referred files in March 1999 and 2001 was: 15,330 files.

   The minus of closed files was: 15, 761 files.

   The increase rate of performance of March 2001 than 1999 was: 434 files.

   The minus of referred files in March 2000 and 2001 was: 11,420 files.

   The minus of closed files was: 16,462 files.

   Decrease of performance in compare with the last year’s March was: 2963 

   The increase rate of referred files in March 2001 in compare with 1999 and 2000 was respectively: 16.43% and 12 %.

   The increase rate of closed files comparing 1999 and 2000 was respectively: 17% and 18%.

   Total reheard files: 64% out of all cases.

   Decrease rate than Feb. : 1%

   The quashed judgments by rehearing courts :  21.18%

   Its increase rate  than the previous month : 2.18%

    Amended  files due to quashing  judgments  :  1.21%

   The most files were referred to public court of Golestan province.

   The second one in referring files was: Family complex, branch 1715 with 1457 files.

   The third rank in this concern belongs to: Branch 2 of Shahriyar Justice Administration with 1210 files.

   The fourth rank belongs to: Rehearing court, branch 12 with 722 files.

   The fifth rank belongs to: Tehran Revolution courts’ branch 26 with 547 files.

   The longest trials period: 8 months (in Tehran revolution court, branch 26) and in the previous month it had a period of 9 months.

   The second aforesaid rank belongs to: 3 branches of Shahid Beheshti Judicial Complex No.220 and rehearing court, branch 1 of Pakdasht Justice Administration with 7 months.

   The third rank belongs to: Branch 3 of public court with a 6-month period.

Grading among complexes is as follows:

  Mahalati complex was in first rank according to numbers of active branches and closed files with 285 closed files.  The second rank belongs to Family complex with 270 closed files, third: Shahid Motahari (207 closed files), Fourth: Narmak (207 closed files).

  But among Justice Administrations: First: Islamshahr (183 closed files), Second: Shahriyar (173 closed files), Third: Karaj (173 closed files), Fourth: Shahr-e-Ray (164 files).

  And among public courts: First: Golestan court (323 closed files), Second: Nazarabad (241 closed files), Third: Chahrdangeh (223 closed files) and Forth: Pishva (177 closed files).