The Editor in chief’s note

The justice administration and the condition of its creation

1)

One of the existing legal vacancies after the formation of public and revolution courts was the omission of public prosecution’s position. At the same time it was paid attention and criticized by the experts. This vacancy was observable in the years 1995 to 2000, so that in the public and revolution courts’ judgement procedure (approved in the year 2000) it was decided that the public prosecutor plays an important role in the cases. In the article 3 GH – it was specified that the judicial field’s chief is in charge to follow the public claim and based on his order, his deputies do the duty. But, because the 80-year-old records of public prosecution wasn’t forgettable so soon, this article couldn’t replace it.

This subject is either interesting or surprising. It is surprising because the 80-year-old organization changes without judgment procedure (although the aim of this change is good judgement.) It is interesting because the articles of criminal procedure law of 1912 can solve the problem of the new system for 4 years.

2)

The council of ministers’ written decree added to the law of “penal trial code”, explains the procedure and condition of the law’s approval as it follows. (Previously, “criminal procedure” was called “penal trial code.”)

The temporary rules of penal trial code includes 506 of articles that 492 of them have been suggested to the justice commission of the National Council Assembly by the justice ministry. In the mentioned commission, after considering Mr. Adolf Perni’s opinion (who was a French advisor), the articles were presented to the assembly in the first consultation. During the second consultation, as a result of the national council assembly’s discontinuity, they weren’t examined carefully. Therefore, it was necessary to issue the mentioned temporary rules. Consequently, a specific commission was formed by the justice ministry. The commission was composed of Ms. Seyyed Hassan Modares, Mr. Seyyed Nasrollah Taghavi, Mr. Mirza Reza-khan Nain:. In the second consultation, they were examined carefully and four articles (articles 416-429) were added to the mentioned law by the specific commission. The whole 506 articles were approved by the mentioned commission and confirmed by Mr. Modares who is one of the Islamic jurists. They were presented to the council of ministers by Mr. Momtaz-al-doleh, the justice minister and approved by the ministers. As a result of consulting with the French advisor, the mentioned law has been acquired from French criminal code of 1880. This law has been confirmed implicitly but it hasn’t been born in the legislative assembly. It should be mentioned that French law is one of our resources in criminal procedure code.

Today, we want to welcome the justice administration. Some believe optimistically that the returning of public prosecutor can solve the main judicial problems. They hurry to fill the vacancy of public prosecutor’s position, so that they try to remove the guardian council’s objection relieve to the offering draft about the modification of public and revolution courts’ formation law.

The most important subject is that: which law equips this justice administration? The experience of public and revolution court’s formation (without any judgement procedures) shows that it is better to form the justice administration now. Because compiling the related code takes a long time.

The first statement of article two’s modification states that: In every judicial field that the public court has been formed or will form, a justice administration is also formed beside it. The organizations the competency limit, the duties and authorities of the mentioned justice administration (which is called “public and revolution justice administration”) are based on “the penal trial code”, its next modification, the law of non-litigious matters and other rules, until the approval date of the related judgement procedure which will be at most 6 months after the approval date of this law.

This section is one of the cases, which was objected by the guardian council. They emphasized that the law of 1870 was abolished. Although, according to the article 308, the public and revolution A.D law is not applicable to the public and revolution courts, the mentioned object caused disorder in judicial system because it referred to the next modification. So the objection was justified.

Nevertheless, after considering the objection, the following article has been replaced and approved:

Article 3

In the area of a province, a justice administration is formed beside the courts of that area. The organization, competency limit, duties and authorities of the mentioned justice administration (which is called “public and revolution justice administration) are based on the public and revolution court’s judgement procedure law in criminal affairs approved in 19.9.90 until the approval date of the related judgement procedure. The regulations inserted in this law are as follow.

By this statement, the public prosecutor’s duties were limited to what has been mentioned in the prosecution and investigation section of the judgement procedure law in 1990. But it isn’t included other duties of the public prosecutor which in different rules such as the affairs related to municipality – different ministries – company registration – taking possessions – commissions. And …., have been emphasized. The duties mentioned in the law of non-litigious matters and the law of justice organization principles are two examples of this modification’s important ambiguities.

It is understood from the mentioned approval that the public prosecutor’s duties have been divided in two parts:

1. The public prosecutor undertakes the offenses’ prosecution and investigation affair in the law limit of 1990

Although the age of 3 years of the judgement procedure law of the year 78 is finishing, it seems that its limitation has been removed by this approved article. But it should be mentioned that: Although in the article, the public prosecutor’s competency, duties and authorities are limited to the public and revolution courts’ procedure law of the year 1990, it is understood from the mentioned statement in added article’s section A (e.i. the public prosecutor under takes to do non-litigious matters according to legal regulations) that the public prosecutor will undertake all the non-litigious matter.

2. Whatever mentioned in other rules, which it is possible but difficult to compute, is inside the duty domain of the chief of the judicial field.

 3)

 Some points about justice administration’s revival one of the most important objections of the modification draft is to limit the public prosecutor to the judgement procedure law of public and revaluation courts in 1990. We hope to solve the problem.

-Returning the public prosecutor (which has fully been accepted) is dependent on its good performance especially in Tehran.

-Getting ready to execute it in the whole country and preventing form disorder in the judicial system.

-The existence necessity of complete criminal judgement procedure for all judicial and criminal authorities (justice administration and public, revolution, martial courts)…

Paying attention to the fact that French criminal procedure law is one of our resources in criminal procedure, it should be considered that this law has frequently been modified and has changed form 1808 to 1993, such as: Criminal procedure law of 1957, the order No.51-1290 of December, 1958, and other laws specially: December 30^th of 1985, September of 1986, 6^th July of 1989, 10^th December of 1985, September of 1986, 6^th July of 1989, 10^th of July 1991, and the last important modifications are in 4^th January and 24^th August 1993 that have been performed from 1 March of 1994.

-                      To use the experiences which are about establishing public and revolution courts and not to do the old mistakes

It is certain that people will remember our speech, action and effect on the judicial institution in future, as well as we remember the statements which were mentioned in the past.

-                      At the approval thresh old of the draft of public and revolution court’s formation in 1995, it is useful to review the lectures and obtain some important results.

4)

Some examples of the presented statements in the thresh old of public and revolution courts’ approval in 1995:

A)                  Justice administration is 85 years old in Iran. I think that (from beginning of constitution till now), we got used to this organization. We think that if we change the system, the conditions will be disturbed. But I make you sure that many problems are solved and we get close to Islam.

    The respectable justice ministry-57

B)                  Another problem is that his way bas basically a religious problem. Please pay attention that I holy law of Islam, it is permitted to present a claim in the presence of the governor-judge. Therefore it isn’t religiously permitted to present a claim in the presence of a person who doesn’t have judgement competency.

Mr. Mohasel Hamedani- the vice president of legal and judicial affairs commission – 55

C)                  I thank the research unit of Shahid Beheshti University very much. They have made a scientific research. I read the summary of the research for you to see how all the judicial society of Iran disagree with this subject.

A sample of statistics of 1/20 judicial society (in 23 provinces) shows that: about the omission effect of prosecutor’s office, 56/8% of individuals believe that this omission makes the work slow. 26% of the individuals expressed positive opinion about the omission of justice administration and its effect on the examination accuracy 71/9% of them had negative opinion. They believed if the prosecutor’s office is omitted, it caused the work to be done carelessly. Just 18/5% of them agreed to this subject. About the religious problem, 97/3% of the interviewees (who were educated in both university and religious schools) announced that the existance of prosecutor’s office doesn’t have any legal and religious prohibition at all.

Mr. Nobakht, the representative – assembly 55

At the end I finish my speech with a piece of poetry of Hafiz:

Stone becomes ruby by patience, right

It needs the blood of lever, but

Yes, Patience is bitter, but its fruit is sweet.

5)

The last subject

There are some cases that weren’t in the first modification draft and added to it after, its returning from the Guardian Council. The cases are as follow:

Section (2) was modified as below:

2- Article (3) and the its notes (2) and (3) are modified as below and the notes (4), (5) and (6) are added to it:

Article (3)- In the judicial area of each province a prosecutor’s office is formed beside the courts:

The organization, the limit of competency, duties and the authorities of the mentioned Prosecutor’s office which is called” public and revolution court” are according to the public and revaluation courts’ procedure in criminal affairs approved in 19.9.2000 by the judicial and legal commission of Islamic Council Assembly, (until the approval date of the related procedure). The regulations inserted in this law are as fallow:

A- the public prosecutor is in charge of the prosecutor’s office which undertakes the discovery of the offense, prosecuting the accuse, presenting the claim from the aspects of God right, keeping public right and Islamic limits, the execution of the judgement and also examining the non-litigious matters according to legal regulations. He will have required number of deputy, assistant, interrogator and administrative organization. The actions of the prosecutor’s office begins by the complaint of a private complainant (in the offenses which have private aspect). In judicial area of a district, the alternate judge undertakes the public prosecutor’s duty and if he is absent, the court office’s administrator does the work.

B- The public prosecutor is in charge of the justice administration’s bailiffs and supervises them to do their duties.

C- The formal individuals and authorities are obliged to inform the public prosecutor about the cases which a penal affair must be followed.

D- The interrogator can begin the primary researches when he has legally been given this right. The legal aspects, by which an interrogator can begin the research, are as follow:

1. The public prosecutor’s offering

2. Announcing an offense or presenting a complaint to the interrogator when it isn’t possible to accuse to the public prosecutor and it is urgent to examine it.

3. In flagrant offenses if the interrogator personally observes its happening.

E- The public prosecutor has right to supervise and train the interrogator in the affairs which are referred to him. The public prosecutor can ask for the completion of the researches if the interrogator researches one incomplete even thought the interrogator believes that they are complete.

During the research, the interrogator performs the public prosecutor’s legal request and mentions the cases in process-verbal. Every time he encounters a problem so that he can’t solve it, he announces the case to the public prosecutor and waits till the problem is solved.

F- The interrogator undertakes all offenses’ primary investigations. In the offenses, which the criminal court of the province isn’t competent to examine, the public prosecutor has all the same duties and authorities as the interrogator’s.

In the offenses, which the province criminal court is competent to examine, the public prosecutor collects and keeps the reasons and offense effects till before the time of the interrogator’s presence and interference. In the case of other offenses, the public prosecutor can ask the interrogator to do some research but doesn’t refer to him the affair examination generally.

G- All the assistant’s writs must be with the public prosecutor’s permission. If there is any difference between the public prosecutor’s opinion and the interrogator’s, the public prosecutor must be obeyed.

H- The interrogator himself (or at the request of the public prosecutor) can issue the temporary arrestment writ of the accused and also obtain and charge the security writ, in all research stages and in the cases mentioned in the public and revolution courts’ procedure law in criminal affairs approved in19.9.2000 by the legal and judicial commission of the Islamic Council assembly. In the case that the interrogator has personally issued the temporary arrestment writ, he is obliged to send the case to the public prosecutor during 24 hours. Whenever the public prosecutor disagrees the arrestment writ, his opinion must be followed. If the reason of arrestment has been removed, the accused is released with the public prosecutor’s agreement (permission). In the case that the public prosecutor has requested to arrest the accused and the interrogator has disagreed it, the public or revolution court will solve the problem.

Whenever the arrestment causes have been removed, the accused can request the interrogator to release him. In this case, the interrogator is obliged to express his opinion to the public prosecutor (to make a decision), during 10 days from the date of request delivery. However, the accused can’t enjoy this right more than once a month. In the case of difference between the interrogator and public prosecutor about the natural local competence and also the kind of offense, (according to the case) the public or revolution court will solve the problem.

I - Whenever the accused is in imprisonment (till 4 months in the case of offenses which are the subject of criminal court’s competence and till 2 months because of the issuance of provisional remedy), and his case hasn’t been finalized in the prosecutor’s office, the authority that has issued the writ, is obliged to remove or reduce the provisional remedy unless the provisional remedy continues because of some legal or justified reasons. In this case, the writ is reinstated with the mentioning of reasons. The accused has right to complain about this decision to public or revolution court (according to the case), during 10 days from the date of notification. The interrogator (with the public prosecutor’s agreement) issues the removal of the accused’s arrestment writ. If there is a difference between the public prosecutor and the interrogator, the court must solve the problem. If the accured’s arrestment continues, the regulations of this section are performed each four or two months (according to the case). However, the detention time of the accused must not exceed the minimum of imprison punishment which ahas been mentioned in the law for that offense.

J- The bailiffs, official authorities and the administrations must perform the requests of the public prosecutor or the interrogator. The interrogator can examine the bailiffs’ investigations. He can charge the actions or complete the investigations whenever it is necessary. According to the related law, any infraction of this section’s regulations, in addition to the administrative or disciplinary prosecution, will deserve criminal prosecution.

K- When the researches finished, the interrogator listens to the accused’s defense. He announces the investigation end and his opinion. Then he sends the case to the public prosecutor. In the cause that no offers has happened (in the interrogator’s opinion), or there aren’t enough reasons for the commission of act, the public prosecutor issues the writ of non-prosecution. If the interrogator believes that the accused is guilty, the public prosecutor issues the writ of indictment. If the accused, in his last defense, presents an effective reason to discover the truth, the interrogator is obliged to examine it.

The public prosecutor is also obliged to study the case and announce his opinion during 5 days of the reason’s receiving date.

L- Whenever the public prosecutor and the interrogator agrees with each other about the accused’s guilt, the prosecutor issues a bill of indictment and sends the case to the competent court. If they are on agreement about the accused’s non-prosecution, the interrogator orders to send the notice of the issued writ to the private complainant. In this case, the accused is immediately released if he is in prison.

Whenever, the interrogator and the public prosecutor disagrees with each other (one of them believes in the guilt or non-prosecution of the accused and the other one believes in their opposite), the public or revolution court solves the problem.

M-The following points must be specified in the bill of indictment:

1- The name and surname, father’s name, age, job, the place of residence, the level of education, marital state of the accused.

2-The kind of provisional remedy, including the clause whether the accused is released or arrested.

3-The kind of accusation

4-The reasons of the accusation

5-The legal articles used for documentation

6-The criminal conviction record, in the case that the accused has such a record

7-The date and the place of the offense happening

N- The interrogator’s writs to which the public prosecutor agrees, one objectionable in the competent court in the following cases. The court judgment which is issued in an administrative session and without the presence of public prosecutor, will be decisive:

1.Objection to the writs of non-prosecution at the request of private complaint

2.Objection to the writs of the lack of competence, temporary detention, aggravation of security and providing the object of the claim at the request of the accused

3.Objection to the suspension writ at the request of the private complainant and the public prosecutor.

The above mentioned writs are objectionable during 10 days of the their notice date.

Objection to the writs doesn’t cause the research process to be stopped and performed. All the inquiring action continue until the court takes a decision. If the writ result is to release the accused, the judgement is immediately performed.

Whenever the writ of non-prosecution is issued because the reasons are not adequate (and it is decisive), the accused can’t be prosecuted (with this accusation) anymore, unless after discovering some new reasons. In this case, he can be prosecuted just for one time at the request of the public prosecutor. Whenever the court permits to follow the accused again, the interrogator examines and issues the required writ. This affair doesn’t prevent the court form examining the damage petition of private claimant.

Note 2- This law doesn’t include the examining of the offenses which martial courts are competent to examine, and they are examined in prosecutor’s office and martial courts.

Note 3- The offenses which their legal punishment is imprisonment or cash fine (to the extent of 1000000 Rials, and the child offenses are directly presented to related courts and the prosecutor’s office doesn’t have any interference in these affairs.

Note 4- The offenses which have directly been presented to the court (until the date of this law’s performance), will be examined in the same court, without indictment and the examination of persecutor’s office. If some investigations or actions are needed to discover the offense, the court must do them itself.

Note 5- By public prosecutor’s offering or in his absence, the prosecutor’s office deputy or the assistant to the public prosecutor general undertakes the whole or some of the duties and legal authorities of the public prosecutor. Note 6- In the districts’ judicial areas, the court’s chief or alternate judge are replaced for the interrogator (in the case of offenses which the province criminal court is competent to examine). They work under the supervision of the related public prosecutor. Other offenses are examined according to the law and the judgment is issued.

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 A selection of latest legal approvals

The movement of prisons and security and training centers

The prisons’ local situation is one of the regime’s problem. In the whole country (in the second half of the year 2001), the number of the prisoners has increase to the rate of 17%, whereas, the present capacity of the prisons is 171105 individuals that 100000 individuals of them are more than the prisons’ formal capacity. Although this opportunity of t10 years is suitable, fighting against the crisis doesn’t take such a long time!

The law of the movement of the existing prisons and security and training centers to the suburb

Article 1- The organization of prisons and security and training centers – which is briefly called “the organization” in this law – is obliged to alienate the related lands and buildings including building sites and standing property to the “housing and urban development ministry” according to this law and the executive by-law, in order to more the security and training centers (except the houses of detention) from urban to the suburb. The related ministry is obliged to provide suitable lands during 10 years. It is also obliged to build the required prisons and security and training centers by selling the mentioned lands and buildings (with or without change of their application) and the credit which is anticipated every year in the state’s budget. It must complete the buildings and deliver them to the organization.

Note 1- The establishment of the prisons and mentioned centers will be done based on the preferences which have been determined by the organization and according to the mentioned regulations.

Note 2- The “housing and urban development ministry” is obliged to establish the prisons and mentioned centers considering the aims and regulations of provided plans and the standard space per each individual. The building must be established in the places, which are determined according to the regulation, considering the architectural principles of the mentioned places and according to the export’s opinion of the organization.

Article 2- The income obtained by selling the property mentioned in article (1) of this law, must be deposited in treasury general 15% of the deposited money (which has been anticipated in the state’s budget) was delivered to the organization in order to remove the prisons’ deficiency, to repair and complete the buildings and prisons, houses of detention, concentration comps and security and training centers.

Article 3- The organization is obliged that as soon as the organization received the new buildings, according to the case, most evacuate the centers which are inside the city and deliver them to the housing and urban development ministry, based on the determined time and condition in the executive by-law of this law. The delivery of the mentioned cases will be happened simultaneously if it is possible.

Article 4 – The state registry of deeds and real estate organization is obliged to issue and move the documents of the property mentioned in article (1) of this law. The documents are registered in the name of the organization or housing and urban development ministry or introduced natural and legal persons.

Article 5- The agriculture Jahad Ministry id obliged to deliver freely the national and governmental lands which are not fertile to the housing and urban Development Ministry in order to establish the prisons and security and training centers.

Article 6- All the executive organizations must provide fundamental installations and other related needs according to the opinion of the house and urban development ministry to establish new prisons.

Article 7- The regulations of this law doesn’t omit the credit of the organization’s establishing plans in the cases which are related to establish prisons and security and training enters until the complete movement of the prisons to the suburb.

Article 8- The executive by–law of this law will be provided by the housing and urban development ministry and Justice Ministry (with the coordination of the organization) and will be approved by the council of ministers.

The above law includes eight articles and two notes. The law was approved in 28.11.2001 by the Islamic Council Assembly and was confirmed in 6.12.2001 by the Guardian Council.

The by-laws and the approved regulations

1. The regulations of computer information nets

(The approved regulations of the sessions 482,483,484,485,486,488 dated in 2001. 31.7.2001-14.8.2001-28.8.2001-25.9.2001-9.10.2001-6.11.2001 in the High Cultural Revolution Council)

Following the general policy of the computer information nets which was approved and notified by the respectable leader of Islamic Revolution (The letters No.1/1033 dated in 30.5.2001and No.1/1072 dated in 3.6.2001 from the respectable leader’s office), the “high cultural and revolution council” approved the regulations of computer information nets as below:

Introduction:

In order to organize the affairs, activities and development of Internet’s access services in the country, the regulations of computer information nets have been regulated considering the following basic points:

1.People right of free access to information and knowledge

2.Individuals’ legal and civil responsibility against their activities

3.Considering the social rights and protecting the cultural and technical resources in the territory

4.Establishing maximum facility in presenting information and Internet service to the public

A-The by-law of the conditions of getting permission and the technical regulations of international contact point

1.The point of international contact (ACCES SERVICE)

The government is exclusively the provider of A.S.P. Giving permission to the related organizations is done by the high information council.

2.If the governmental executive organizations want to invest for establishing an international contact point (independent from the state telecommunication net), it is required to provide a cultural, scientific, technical and economical report which has been signed by whish executive authority. The report must be approved by the state administrating and programming organization. The high information council undertakes the final approval.

3.The executive organization delivers a copy of the request (including technical justification) to the post, Telegraph and Telephone Ministry. The request (accompanied by the technical examination of the mentioned ministry) includes the technical and scientific opacity of the applicant, frequency examination and other technical and engineering affairs, is sent to the high information council for final approval. This council will announce its opinion during one month after receiving the opinions of Information Ministry and Post, Telegraph and Telephone Ministry.

Note – The “voice and vision organization” doesn’t need “high information council” ’s permission just for the duty of broadcasting of its radio and television programs by the Internet. But for presenting other Internet services, it is obliged to get the permission of this approved law.

4.The post, Telegraph an Telephone Ministry is obliged to receive all the characteristics of technical possibilities according to article 3 from the applicants and deliver to the information Ministry. The information Ministry is obliged to examine the required technical-protection aspects (in determined time) and present corrective suggestions in coordination with the post, telegraph and telephone during one month. In the case that they don’t announce their opinion, the characteristics of the mentioned possibilities will be interpreted as an confirmed matter.

5.Every executive organization, which is permitted to have international access, just has permission to give services in its approved and legal duties. In the case of disregarding this fact, the post, telegraph and telephone ministry (after sending a written notice) will cancel the permission.

6.All the A.S.P. providers (such as Iran telecommunication company) an obliged to provide required technical possibilities to protect and control the mentioned nets centrally as fallow:

a- Providing a suitable filtering to prevent users from access to the moral and political forbidden sites and omit the undesired ports. The determination of filtering regulations will be done by the high information council.

b- Providing a suitable firewall to protect the nets from destruction, cheating and information robbery.

c- A.S.P. Provider is obliged to make its users’ Internet activity bank communicable. In the case of doing any offense, with the confirmation of high information council and related commission) user to related authorities.

10. Governmental organizations which have established an international access point without permission, are obliged to request it during one month after sending the by-law, otherwise, they will be treated based on the article 9.

Note – The private companies which have provided A.S.P. so far, are required to collect the foundations or r deliver them to governmental sections, during 6 months after sending the by-law.

11. The Post, Telegraph and Telephone Ministry undertakes the supervision on the good application of A.S.P.

12- The post, Telegraph and Telephone Ministry presents a report about the application of this by-law to the high information council once 6 months.

B-The by-law of Internet Service Providers (ISP) or Rasa

1.The definition of Rasa (ISP)

The companies or organizations, which provide the Internet and information services are, called ISP or Rasa.

Internet is composed of some small or large computer’s unlimited communicational nets, which include various information. An individual, who is connected to Internet, is not just an observer of it, but he is a part of the net and can communicate information. An ISP provides a connection to the information net and Internet. ISP is the urgent part of access, which connects individuals to the Internet.

2- The Internet service provider’s (Rasa’s) activity limit is as follows:

1-2- The companies or organizations which provide information service and Internet act under the determined regulations in the country. They can provide their users with some products independently or in relation to the Internet.

2-2 Presenting the collection of value services (on-line or off-line) to their users.

3-2- Providing the access to Internet and supplying some contents and products to the users.

4-2- Doing some activities to make the users familiar with the Internet.

5-2- Providing the users with the information’s services, supplying, producing and distribution.

3- The Internet service provider (Rasa) is permitted to be active, regarding the following conditions:

1-3- Providing and installing of required equipment in order to communicate users’ information such as: Local area network (lan), telephone lines, router, modem, e-mail memories, DNS…

2-3- Providing and applying the required equipment according to the announced standards by the Post, Telegraph and Telephone Ministry.

4- Every ISP is required to obtain the related permission to present telephone services (voip) according to the legal regulations of Post, Telegraph and Telephone Ministry.

(This affair doesn’t include the communication of a computed to another one e.i chating)

5- The Internet service provider (ISP or Rasa) is obliged to consider the following regulations or conditions:

1-5- The legal individuals and registered companies in Iran, can request to obtain IDP permission.

2-5- It is required that the administrators of these organizations or companies have the following conditions:

1-2-5- Iran citizenship and being bound over the Constitution Law of Islamic Republic of Iran

2-2-5- Professing one of divine religion which is formally inserted in the constitution Law of Islamic Republic of Iran.

3-2-5- Having scientific competence (to the extent of at least BA degree) and being 25 years old.

4-2-5- Not having a reputation for immorality and criminal conviction record, according to Islamic scales (that causes deprival of social rights)

5-2-5- Not being a member of illegal and anti-revolution groups and being a fan of these groups (those who have been convicted in Islamic revolution courts for anti revolution offenses or those who have had activity or propaganda against Islamic republic regime or against the internal or external security of the country, can not be in charge of ISP organizations or companies.)

3-5- The ISP company has legal responsibility and must regard and are responsible for all the following regulations and obligations:

1-3-5- according to this by-law, the ISP institutions, companies and users are responsible for the contents, which they themselves present on Internet.

Note- this section doesn’t include the presentation of access services to information sources.

2-3-5- The information givers on the net undertakes the responsibility of regarding spiritual possession laws and edit right.

3-3-5- The establishment possibility of filtering on Internet (Rasa) must be provided. The regulations and samples of filtering must be announced and approved by high information council.

4-3-5- the responsibility of ISP (Rasa) about information access presented by others will be limited to establishing filtering on Internet.

5-3-5- Every ISP is obliged to register the users’ general information and related IP and send a copy of them to the Post, Telegraph and Telephone Ministry.

6-3-5- ISP (Rasa) is permitted to make a subscription contract with those who have reached legal age to do law trades, so that they accept their legal responsibilities. In this way, individuals’ rights are protected for the actions which have been done.

7-3-5- ISP doesn’t have any right to deliver the application concession (to any company or person) without coordination with or confirmation of the post, Telegraph and Telephone Ministry.

8-3-5- The application of any code to communicate the information is included the related authorities’ permission, the registration of the characteristics, algorithm and the key of the related code and applicant’s characteristics in the high information council’s secretariat, otherwise it is forbidden.

9-3-5- ISP (Rasa) is obliged to provide the users with the designed quality services based on a service-level agreement. The Post, Telegraph and Telephone Ministry evaluate the quality of giving services of IQP institutions to the users periodically and classified them according to their ranks and announced the results to the public.

Note- The telecommunication companies are also obliged to consider the desired quality about giving services to the ISP institutions and act according to the service-level agreement (SLA).

10-3-5- ISP is obliged to provide required technical arrangements to protect users’ rights and prevent form attacks to their computer.

11-3-5- ISP is obliged to act according to the issued regulations by the post, Telegraph and Telephone Ministry and inform the users about the cases, which are related to their rights.

12-3-5- ISP is obliged to deliver to users the information related to the protection way of private territory of individuals’ information and communication on the net.

13-3-5-ISP is obliged to consider the state telecommunication laws in giving its services to the users.

14-3-5- ISP is permitted to provide international Internet communication just by licensed access services points (ASP) or by the Telecommunication Company of the country.

15-3-5- The users’ private information territory enjoys immunity and any illegal access to the users’ Internet activities by other ISP or any other authority is forbidden.

16-3-5- ISP is obliged to make its users’ Internet activity bank, accessible to the Post, Telegraph and Telephone Ministry according to the approved regulations of the related commission.

6- Producing and supplying the following cases by ISP and the users are forbidden:

1-6- The publication of the subjects which are atheism and against Islamic scales

2-6- Insulting to Islam religion and its holly matters

3-6- The opposition to the constitution law and publishing any subject which is against the country’s independence and territorial integrity.

4-6- Insulting to the leader and Islamic jurists

5-6- The distortion or degradation of religious holly matters, Islamic undeniable issues, Islamic revolution values and Imam Khomeyni’s political thought basis

6-6- Causing disorder in national unity and agreement

7-6- Suggesting disappointment and pessimism to people relative to Islamic system’s qualification and legitimacy

8-6- The publication and propagation of illegal groups and parties’ opinions

9-6- The publication of governmental documents and classified information and affairs related to security, disciplinary and martial subjects.

10-6- The propagation of prostitution and proscribed things and the publication of pictures, portraits and subjects which are against the public morals.

11-6- The propagation of using cigarettes and narcotic substances.

12-6- Making accusations against the authorities and every individual of the country and insulting to natural and legal individuals.

13-6- Revealing the individuals’ private relationships and attacking to their personal information territory.

14-6- The publication of information including the code keys of information banks, special software and e-mail boxes or the way of decoding these codes.

15-6- Doing illegal and unlawful financial and commercial activities on Internet such as forging, embezzlement, gambling, and so on

16-6- The propagation, buying and selling of all goods which have legal prohibition on Internet.

17-6- Any inadmissible penetration to the centers which have private and secret information and trying to break the lock of the systems’ code.

18-6- Any attack to others’ information centers and Internet to disable them or reduce their efficiency.

19-6- Any effort to examine and control of information blocks which belong to others and pass the net.

20-6- Establishing any net or radio and TV program without the conduction and supervision of voice and vision organization.

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7.The way of permission issuance

1-7- The Post, Telegraph and Telephone Ministry examines the request and issues the permission based on this law.

2-7- the determination of the applicants’ protection competence is done during formal inquiry of competent authorities (such as information Ministry, Justice administration ad disciplinary force). If they don’t announce their opinions during one month, it is interpreted as their agreement. (The governmental organizations don’t need this determination of competence.)

3-7- Presenting different kinds of derives on the information net that needs another special permission (according to the country’s regulations) is dependent on the obtaining the related permission from the responsible organization. These organizations, while supervising, announce the infraction cases to the Post, Telegraph and Telephone Ministry.

4-7- In presenting information and Internet services, all governmental organizations and public institutions are obliged to act within the limit of their duties and institutional mission.

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8. The way of supervision

The post, Telegraph and Telephone undertakes the responsibility of supervision on the execution of this by-law. This ministry sends its supervision report to the related commission periodically.

9. In the case of any infraction of the cases inserted in this by-law, the commission executes punishments such as giving notification, temporary cancellation of the permission, cancellation of the license, introducing the case to the courts (according to the kind of infraction and based on the related regulations). The commission the Post, Telegraph and Telephone Ministry’s supervision report and announces its opinion based on it.

Telephone Ministry’s supervision report and announces its opinion based on it.

10- The commission’s opinion is decisive and enforceable. But it can’t prevent the beneficiary individuals from complaint in the court.

11- According to this by-law, the mass media are obliged to obtain a warranty from their users to consider the regulations.

2- The by-law of coffee nets

1-  Coffee nets are places for users to access to the Internet.

2- These offices, while regarding the regulations inserted in this by-law, are considered guild entities. They are included the guild system law and the required license is issued by the guild union.

Note- The guild union must send the copy of the issued license to the Post, Telegraph and Telephone Ministry coincident with its delivery to the applicant.

3.The applicants must have the following characteristics:

1. The citizenship of Islamic Republic of Iran

2.Believing in manifested religion of Islam or one of the religions recognized in the Constitution Law of Islamic Republic of Iran

3.Being bound over the Constitution Law of Islamic Republic of Iran

4.Not having a reputation for immorality and criminal conviction record and not being addicted to narcotic drugs.

5. Having the certificate of doing military services or exemption certificate of military service for males.

6. Being married and at least 30 years old.

1-3- This place must be in the public vision and supervision. It is required to consider the public places’ regulations.

2-3- These offices’ Internet communications are permitted just by means of IDP (Rasa) companies and institutions.

3-3- Presenting other communication services such as Internet phone is included the obtaining of related permission.

4-3- It is required to consider the regulations inserted in article 6 of the ISP (Rasa) companies’ by-law.

Note- The guild union provides the executive by-law of this article and it must be approved by the related commission of the high information council.

4. The name, the complete address, the phone and fax number, e-mail address and the license number must be inserted on top of the office notebooks’ pages. The license and the line reference of the related ISP must be observable by the public.

5. The user’s identity specifications and address, the time that he has started and finished his work and the IP which has been attributed to him, must be registered in both daily register and his statement of accounts. In this way, they are responsible for their actions and individuals’ right can be protected against the actions, which have been done.

The offices and the users are responsible for the contents which they produce and supply themselves, according to the legal regulation of the country such as the laws and regulations of spiritual ownership right.

7. The production and supply of the following cases by the computer information nets are forbidden.

1-7- The publication of the subject which are atheism and opposite to the Islamic scales

2-7- Insulting to the religion of Islam and its holly subject:

3-7-The opposition to the constitution law and publishing any subject which is against the country’s independence and territorial integrity.

4-7- Insulting to the leader and Islamic jurists

5-7- The distortion or degradation of religious holly matters

6-7- Causing disorder in national unity and agreement

7-7- Suggesting disappointment and pessimism to people relative to Islamic system’s qualification and legitimacy.

8-7- The publication and propagation of illegal groups and parties’ opinions.

9-7- The publication of governmental documents and classified information and affairs related to security, disciplinary and martial subjects.

10-7- The propagation of prostitution and proscribed things and the publication of pictures, portraits and subjects which are against the public morals.

11-7- The propagation of terrorism and rudeness and teaching to make destructive materials such as explosive or inflammable matters.

12-7- The propagation of narcotic substances

13-7- Establishing any net or radio and TV programs without the conduction and supervision of voice and vision organization.

14-7- Making accusations against the authorities and every individual of the country and insulting to natural and legal individuals.

15-7- Revealing the individuals’ private relationships and attacking to their personal information territory

16-7- The publication of information including the code keys of information banks, special software and email boxes or the way of decoding these codes.

17-7- Doing illegal and unlawful financial and commercial activities on Internet such as forgery, embezzlement, gambling, and so on

18-7- The propagation, buying and selling of all goods which have legal prohibitions (on Internet)

19-7- Any inadmissible penetration to the centers which have private and secret information and trying to break the lock of the systems’ code.

20-7- Any attack to others’ information centers and Internet to disable them or reduce their efficiency.

21-7- Any effort to examine and control of Information blocks which belong to others and pass through the net.

22-7- The propagation of using cigarettes

8- The supervision commission of high information centers in Tehran province and the committees of other provinces are composed of data affairs’ administrator of the province’s telecommunication company, the representative of the province’s Islamic culture and guidance administration, the representative of the province’s justice administration, the guild union’s representative of the province’s voice and vision administration. They supervise the work of these offices (under the supervision of the province’s telecommunication company. In the case of any infraction of this by-law’s contents, it is acted as the following way. The way of operation in other fields is according to the regulations of guild system.

By the announcement of the post, telegraph and telephone ministry, the guild union cancels the office license temporarily, during 48 hours and the office is closed. After removing the infraction, the guild union is obliged to issue the permission during 48 hours, so that the coffee net can continue its work. In the case of any delay from the guild union side, the post, telegraph and telephone ministry acts directly by the judiciary power.

Note 1- If there are infractions from section 1 to 13 of this by-law’s article 7, the coffee net’s license of activity is cancelled temporarily (if the infraction is for the first time) for three months. By obtaining security based on the fact that the owner of the coffee net doesn’t do any infection again, the temporary cancellation of the license is abolished. If there is an infraction for the second time, the license is constantly cancelled. In this way, the legal and natural individual who is the owner of the license isn’t permitted to get a new one in the whole country.

Note 2- If there are infractions of the sections 14 to 22 of this by-law’s article 7, if the infraction is for the first time, the owner of the license will receive a written notice. For the second time, his license is temporarily cancelled for a month. After removing the infraction and getting a security that he doesn’t do any infraction again, the cancellations of his license is abolished. In the case of infraction for the third time, the license is cancelled for six months. If the infraction happens for the fourth time, the owner’s license is constantly cancelled and the natural and legal individual, who is the owner of the license, can not get any new one in the whole country.

Note 3- The opinions of the supervision commission and the provinces committees about the above mentioned offenses and their punishments are decisive and enforceable. But they can’t prevent the beneficiary individuals from planning a claim in the court.

9- All the existing coffee nets in Tehran and other provinces are obliged to ask fore required permission during 2 months from the date of this by-law’s approval according to the content of this by-law.

10- The applicants must refer to a congenial union introduced by Commerce Ministry until the establishment of a union for the offices of coffee nets.

3)Paying the parties’ subsidies

By reviewing the principle 138 of the constitution law (which talks about the government’s permission for organizing by-laws and decrees to do administrative duties and secure the law’s performances and adjust administrative organizations) and also reviewing the law of parties’ activities (which include eleven articles and nice notes approved by the assembly in 1981 show that there is no reason that the government has permission to pay subsidize to the parties.

Interior Ministry

The conceal of ministers approved in 21.11.2001 the by-law of the conditions of paying subsidy to the parties and groups which are included in the law of the activity of parties, political and guild associations and societies, and Islamic associations or recognized religious minorities, according to the Interior Ministry’s suggestion No. 82535/1/11 dated in 12.11.2001 and based on the Islamic republic of Iran’s Constitution law, as bellows:

The by-law of paying subsidy’s condition to the parties and groups included in the activity law of parties, political and guild societies and associations, and Islamic associations or recognized religious minorities.

Article 1-  Paying the allocated subsidy is done according to the instructions which are consequently provided by the Interior Ministry and approved by the commission of article (10) of the activity law of parties, political and guild societies and associations, and Islamic associations or recognized religion minorities approved in 1981.

Note – The chief or the vice president of the Parties’ House is invited as an observer to the commission’s sessions of article (10) in relation to the subjects of this by-law. The parties which are members of the Parties House and other related substructures will inform the Interior Ministry and mentioned commission of any suggestion relative to the way of regulating the instructions of this by-law.

Article 2- Paying any subsidy to the parties and groups included in the above mentioned law will be done by the Interior Ministry in order to reinforce collective activities and it is based on this by-law and its regulations.

Article 3- The subsidies which are the subject of this by-law, will be paid to the groups and institutions which have obtained the activity license of the Interior Ministry according to the coined laws and regulations.

Article 4- The computation of subsidies paid to the groups and institutions (which are the subject of articles (2),(30 and (4) of the mentioned law, is done by the Interior Ministry and is approved by the article (10) commission of the mentioned law.

Article 5- The subsidy shave of each qualified party and group is equal to:

The collection of all parties’ points x the point of the party

Note – Any objection to the condition and amount of the subsidy will be examined by the article (10) commission.

Article 6- Equal to 5% of the allotted budget is delivered to the Interior Ministry to be consumed for the public expenses of the parties.

Article 7- Equal to 5% of the allotted budget of the parties House is delivered to the council of the House.

Article 8- All the institutions and groups included in the law of receiving subsidy are obliged to consume the received money for the group’s aims and programs. At the end of the fiscal year, they must send a report to the Interior Ministry to be examined by the article (10) commission.

Note – The groups, which don’t have financial report, will be deprived of receiving subsidy in next periods. If they want to receive subsidy again, they must present their reports to the Interior Ministry and the report must be confirmed.

4- The by-law of the arbitration fee (which is the subject of article 498)

All the persons who present claims, can refer their litigation’s to the judgement of one or several persons (with the agreement of each other) whether the claims have been presented in the court or not, or if it is in any stage of examination (in the case of presenting in the court). This is the article 454 A.D of public and revolution courts in criminal affairs. 47 articles of them (in 7^th chapter) have been attributed to arbitration affair. It has been stated in article 498 that the amount of arbitration fee is based on the by-law, which is provided by the minister of justice administration once a year and approved by the chief of the judiciary power. It was ordered to provide the mentioned by-law in the year 2000. Finally, it was approved by the respectable chief of the judiciary power in 2001.11.12. Of course, there is an ambiguity in the by-law, e.i. the provider of the by-law hasn’t been specified. But, the minister of justice administration must legally provide the described by-law.

The by-law of arbitration fee which is the subject of article 498 of public and revolution procedure law in criminal affairs approved in April, 2000.

Article 1- According to the regulations and in determined time limit, the arbitration fee is 5% of the claim object (if the object of the claim costs to 50,000.000 Rials). Relative to the excess of fifty million Rials (to the extent of 250,000,000 Rials), it is 3% of the claim object, and in excess of it, it is 2% of the claim object unless other regulations are determined in the arbitration agreement.

Article 2- In the cases that the object of the claim is not financial or it is not possible to determine the price of the claim object, the arbitration fee is determined equal to 500000 Rials for each arbitrator. If the guilty or quantity of the work requires more fees, it must be determined by the court.

Article 3- If the are numerous claims, the fee of each arbitration is computed and determined separately and according to the above tariff. The recognition of being numerous of the claims is determined by the court.

Article 4- The arbitration fee is determined based on the tariff and at the time of choosing the arbitrators.

Article 5- If, during the arbitration work, the parties agree with each other, the court will determine the amount of arbitration fee considering the operations which have been done.

Article 6- The arbitration fee of the arbitrators must be put in the deposit account of the justice administration and paid to them after finishing the arbitration work.

Article 7- If the arbitration affair requires the arbitrator to set off for outside of his residence, the expense of the trip is determined so that it is 500 Rials per Kilometers and 200000 Rials per day.

The deduction of Kilometer and the day is computed completely.

Article 8- The two parties must undertake the expenses of arbitration affair such as the expenses of doing experiments or providing required samples and guessing which may be necessary according to the arbitrator’s opinion.

Article 9- In the case that the arbitration affair requires the arbitrator to set off for abroad, the arbitration applicants undertake the expenses of getting visa and its related expenditures including paying charges of going out of the country, providing the plane ticket, the expenses of residence and also all other expenses of the trip and paying daily mission fee (according to the approved regulations of council of ministers, and equal to an administrator general)

Article 10- If the related documents of arbitration are in a foreign language and the arbitrator translated them himself, the expense of translation is determined based on the by-law of formal translators’ tariff.

Article 11- This by-law has been provided in eleven articles and approved by the chief to the judiciary power in 11.12.2001.

5- The decree of exporters’ delayed exchange obligations

It is stated in article (6) of “discretionary punishment awarded by the judge” about the smuggled goods and foreign exchange approved by “expediency discretion council of the regime” in 95.2.5, that the limits and regulations of using foreign exchange are determined by the government.

It was permitted in the article 117 of the law of the third economical development program that the high council of non-oil export development is formed in order to organize the quid lines of the country’s export, determination of helps and facilities presented to the export section and solving its problems, and performing the approved pollicies of the program. The council’s secretarial is settled in the Commerce Ministry. The suggestions of this council are approved by the council of ministers and are enforceable in relation to providing export facilities.

Is the exemption of exchange obligations based on this article permitted by the council of ministers?

Commerce Ministry – Ministry of Economy and finance Affairs

The council of ministers approved the following cases according to the suggestion of non-oil export development high council and based on article (117) of the law of Iran’s social, cultural and economical development (approved in the year 2000) and article (6) of the approved matters of the Expediency discretion council of the regime” about the procedure of “discretionary punishment awarded by the judge” related to smuggled goods and foreign exchange (approved in 1995):

1-The exporters’ delayed foreign exchange obligations (including productive or commercial) related to the export of goods for exhibition in the fairs which are held in abroad (during the period of 1994 to 1999) are exempted according to the recognition of Iran’s export development center.

2-The delayed foreign exchange obligations of the exporters of goods and services during the period of 1994 to 1999 are included the follosing facilities:

A – In the case that the obligations resulted in their contracts don’t exceed of 10000 dollars, they will completely be exempted.

C- In the case that the obligations resulted in their contracts are more than 10000 dollars (to the extent of 500000 dollars), they can be settled by paying the difference of foreign exchange and the rate of foreign exchange deposit certificate in the day of account settlement), without paying any fire to the Central Bank of Islamic Republic of Iran. This decree doesn’t include the cases hoes conditions haven’t been determined until the date of this decree’s notification.

D-The exporters’ foreign exchange obligations which are more than 500000 dollars, are referable to the examination commission and they can be examined according to the table approved by that commission.

Note – The exporters who are included in this decree (after enjoying the determined facilities), can refer to the court and related organizations to remove the effect of judgements which have been issued before the date of this decree’s notification.

Note 2- The operation report of this decree is presented by the High Export Council’s secretarial by the end of 2001.

2.The banks and executive organizations are not permitted to request that the exporters become prohibited to export their goods or to go out of the country for the reason that they haven’t done their foreign exchange obligations.

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The Prime Minister whom went on trial and was acquitted

Mr.Ali Soheyli, the famous politician, after September of 1942, was the foreign minister of Mr. Forooghi’s cabinet. He signed the trilateral treaty with Mr. Bulard, the British minister, and Mr. Smirnor, the Soviet Union minister in 29.1.42 (after the assembly’s approval). He became Prime Minister tow times; at the first time, he became Prime Minister after the expiration of Mr. Forooghi’s cabinet from 9.3.41 to 6.8.42, at the second time, it was after the expiration of Mr. Ghavam-al-Saltaneh’s cabinet, from 17.2. 42 to 27.3.44. At the period of his prime ministry, specially in the second period, Tehran encountered many problems specially the problem of starvation.

The 14^th Assembly election finished under the supervision of Soheyli’s cabinet. At that time, there were 2000 candidates for 130 chairs of the Assembly. There were many swear words in the papers. In these conditions, Mr. Shoyli couldn’t satisfy all the influential candidates, but he promised to help all of them. Since he couldn’t fulfilled all of his promises, many opponents appeared against him. These oppositions continued until the 14^th assembly.

In the 14^th assembly, Mr. Farokh announced his opposition and convicted Mr. Soheyli that he had influenced on the election of Azabayjan, Shahreza, Bandar-Abas, Abadeh and Jahrom cities. He presented his conviction in the assembly in 15.10. 44.

Mr. Soheyli was convicted that he had interfered in the election of three cities, Mr. Soheyli’s conviction case was examined and confirmed by the “justice administration commission” of the assembly and then it was sent to the court in the late 1946, so that it could be followed according to the law of ministers’ trials. Mr. Soheyli, who was appointed as Iran’s representative in the United Natiors, came back to Tehran and consulted with Mr. Jalal Abdoh and Mr. Javad Ameri. He selected Mr. Ahmad Jadali and Dr. Mohammad-Ali Hedayati as his attorneys. In 16.2.47, his judgement procedure started in the court under the supervision of Mohammad Shafee Jahanshahi, the court’s chief, and 15 judges from the five branches of the court. There were many spectators and the representatives of interior and foreign newspapers in the historical procedure.

When Mr. Shoeyli, the previous minister and the famous politician entered the court, he was faint and a little worried. Nevertheless, he tried not to show his anxiety when he stood up to defend himself. That’s why he sometimes put his hand in his pocket or on his waist and figured as a lord. The attorneys of Mr. Soheyli defended him at first. Then he, himself, while describing the public conditions of the country in the period of his ruling and explaining the difficult and exceptional situation of that time, talked about his services so that he was impressed and creed. Although the attorneys’ statements illuminated the judges’ minds and they knew that Shoayli’s fault about interference in the election is less that the fault of all Prime ministers, and Mr. Mahdi Farokh, himself had committed an offense in every job, the simple statements of Mr. Soheyli and his description about the Assembly’s election, his explanation about this fact that Mr. Farokh had personal grudge and then the state of his impression and cry, influenced the court. Finally the court acquitted him. Except influencing on the election of Azarbayjan, Bandar-Abas and Shahreza cities, the convictions of Mr. Soheyli were: buying some parts of building instruments which cost 27000 Rials from Foreign Ministries store, the news papers’ confinement, the interpretation of martial law and revolt against the national government. All of these convictions were rejected by the court. Mr. Jaanshahi the chief of the court read the verdict of acquittance. Mr. Soheyli thanked the judges while some of the spectators express their happiness. He left the court and came back to London to continue his mission.

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One vote, One experience

The necessity of examining the reasons’ principle

 1- The death of one of the defendants even before the offering the petition to the court, and presenting the claim against the dead, are not included the cases for which the writ of not listening to the claim is issued, father the writ of stopping the judgement procedure must be issued.

2- Since the determined judgement in the article 146 of “civil judgement procedure law” is against “the necessity of examining the reasons’ principle”, and spoils the beneficiary’s rights, it must be considered to decrease its application according to the law.

3-  The article 146 of the civil procedure law includes the case to which the copy of documents as an evidence has been attached.

A)     Verdict: 866-867

Forum: The branch  […] of Tehran public court

Plaintiff: Mr. […]

Defendant: Mr. […]

Object of claim: Delayed rentals and accepting obligation to regulate a document.

Proceeding: The plaintiff has presented an object of claim against the defendant. The object of claim was referred to this branch and after the legal procedures, the court was held and examined the case and issued the following judgement considering the contents of the case.

The court’s In 94.17.5, Mr.[…] presented a petition against Mr.[…]. The object of the claim issue.

Was the request of 8400000 Rials, the delayed rentals of 14 years for the three shares of an apartment with registered No. 3148/9. In 96.5.95, Mr.[…] has presented a petition against Mr.[…] and […]. The object of the claim was the acceptance and obligation of defendants to attend a notary public and regulate a formal document based on the document transfer of the six shares of an apartment with registered No. 3948/9. Following the request of Mr.[…] based on the issuance of a writ to prevent the defendant, temporarily from transferring the mentioned house, and providing legal conditions and basis, the writ of temporary order has been issued in 30.8.97 according to the copy of the contract dated in 10.6.77,Mr.[…] has bought the mentioned apartment from Mr.[…] and […], at the price of 23000000 Rials. He has paid 2100000 in cash, and its remainder (which is 200000 Rials) must be paid at the time of regulating the formal documents. The buyer has possessed the house. In the procedure session of 25.4.96, Mr.[…] has denied the document of the year 1977 and has requested the main one. The buyer has stated that in the year 1984, his house was opposed to robbery and the mentioned contract has been stolen accompanied with the house furniture. Since the local evidences and the opinion of the criminal investigation deportment of the west of Tehran confirm the subject, the court issued the following judgement: The judgement No.1024-26.7.37 of the Supreme court states that: if the documents are based on the witnesses of aware persons, and their information completes and reinforces the documents, the trial can accept and examine the request according to the articles 1306 and 1312 of civil law. By listening to the witnesses and regarding legal procedures and considering the contents of the documents, it was proved that there was a sale of apartment between Mr.[…] and […] and they had talked to regulate a formal document of transfer. The witnesses and their statement have remained immune from any disturbance and the court has inquired a bout the situation of the mentioned apartment. Paying attention to the fact that the sellers couldn’t defend the claim effectively, according to the articles 220 and 362 of civil law and the judgment No.267 –29.9.85 of the branch 9 of the Supreme Court (which states: based on the article 362 of civil law, the seller is religiously obliged to regulate a formal document-that it is also one of the custom’s regulations-) the claim of the buyer is acceptable. The defendants are obliged to regulate a formal document of transfer for the mentioned apartment and in return, receive the sum of 20000 Rials (which is the remainder of the price).

This issue is objectionable and can be reviewed in Tehran trials during 20 days of the date of notification, regarding the article 171 of civil procedure law.

In relation to the demanding of rentals by Mr.[…], since this claim is related to the years 1980-1994, and the defendant has been the owner of the apartment form the date 10.6.77. Therefore, the claim is rejected and it is announced that the plaintiff doesn’t any right to demand rentals. This issue is objectionable in Tehran trials during 20 days of the date of notification.

B

Forum: The branch … of the province’s revision court

The plaintiff of revision: …….

The defendant of revision: …..

 The claim of revision: Verdict No. ….

Proceeding: The plaintiff of revision has presented a petition (based on the above object of claim) that it was referred to this branch. After registering the case and doing legal procedure, it was examined and the court finished the judgement and announced the following issue.

The court’s issue

The second copy of the petition No. … issued by the branch … of Tehran public court in the cases No. 684/72 and 420/762 has legally been notified to the plaintiff of revision Mr.…. His attorney Mr. … has presented the claim of revision in 17.1.97. This claim has been registered by No. 3273, dated in 17.1.97 regarding the fact that the revision request must be done during 20 days of the date of notification, according to the article 27 of public and revolution court’s law (approved in 5.5.93), the revision request is rejected and it is announced that by performing section 2 of article 22 of the above mentioned law, this issue is decisive and enforceable.

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The chief of the branch…. of Tehran revision court the court’s advisors

Tehran Justice Administration’s Opinion

According to the referring of Tehran justice administration deputy in 20.1.99, the above mentioned case is examined and the following report and opinion are announced.

Report: In this case, Mr. .., against Mr. … has presented a petition (No.17.5.97) based on demanding delayed rentals of 14 years. The case is referred to Tehran second legal branch 75. Paying attention to the amount of object of claim and based on the articles 5 and 7 of the law of first and second legal court’s formation, the mentioned branch issues the writ of Tehran first legal trial’s lack of competency. Consequently, the defendant has presented a petition (against Mr. … and …) based on the acceptance of obligation to regulate a formal document of transfer for a six shares of the apartment No.3948/9, situated in Tehran, district 3. The case is referred to the branch … of Tehran public court. After doing legal procedures, finally, the petitions No. 866/867- 30.10.97, (the claim of acceptance obligation to regulate a document) was accepted and the claim of demanding of delayed rentals is rejected. After requesting revision, the branch … of the province’s revision court rejects the verdict No 499-26.7.98 for the reason that the time of revision request is out of the legal extension. So it is rejected according to the article 27 of the law of public and revolution courts’ formation. Consequently, the branch … of revision court, (according to the request and description of the branch … of Tehran public court and the verdict No. 571-23.7.99) has announced that: paying attention to the death date of Mr. … that is 88.17.3, at the time when Mr. … has presented a claim under the title of “acceptance …”, he was dead. Therefore the claim of acceptance doesn’t have any legal figure. So, the writ of not listening to the claim is issued and announced.

 Opinion:  Firstly, according to the article 146 of civil procedure law, the claimant must bring the attributive principles whose their copies are attached to the petition, to the judgement procedure session. The defendant, also, must bring the principles and the copy of documents to the court. If they can’t attend the court, their attorneys must bring the documents. If the document is denied or it is doubtful (if the document is ordinary), it is considered as the case in which one of the parties refuses to send the document to the court. Therefore according to the recent part of article 311 of civil judgement procedure law, the court issues the judgement if it can, if not, it can cancel the claim ant’s petition.

According to the above-mentioned stages, the court must council the claimant’s petition. Continuing the examination and listening to the witness haven’t been justified. Moreover, the attached evidences to the petition don’t prove the claim. Secondly the testimonies of Mr. .. and …, are themselves another subject of claim and the court hadn’t enjoyed legal situation to examine them. Thirdly, in this case none of the defendant attends in the sessions (and even he was dead at the time of presenting the claim, according to the attached documents). But in the case, it has been mentioned that the defendants are present, (according to the article 171 of civil judgement procedure law). This article can not be attributed to , because it is stated in this article that: Whenever the defendants are numerous and only some of them attend the court, and the claimant ask, for examination the case, the court examine the case but delays to issue the judgement to call up the absent defendant again. In the notification, if must be specified that in the case that the defendant doesn’t attend the court, the court will examine the case and its judgement is relative to all defendants and considered as presence. (judgement after trial)

Paying attention to the content of the mentioned article, it is observed that the case is related to one in which the defendants are various and the request of examination is done. None of the above stages has been done. Moreover, the defendant hasn’t been alive at all to receive the notification (including legal or real notice). Fourthly, there isn’t any permission of law to issue the corrective verdict with the quality descried in the verdict No. 581-99.9.8. Of the branch … of the province’s revision court. The revision court, which has previously examined the case and has taken a decision, hasn’t had any permission to issue the corrective verdict. It has had permission to correct the mistakes of writing and so on within the territory of article 189 of civil judgement procedure law. So, the court’s decision has been against the law. Therefore, paying attention to the various mistakes, which have been done, it is requested to execute article 18, section 2 of public and revaluation court’s law.

In the name of Almighty

The case and report were studied. The mistakes which have been done in the procedure of –examination and issued verdicts are verified. So, by the execution of article 18, section 2 of public and revolution court’s law, the case is sent to the Supreme Court.

           Tabatabee – Justice Administration Deputy

C

The state Supreme Court

Date of examination: 12.7.2000

Verdict No.: 3/209

Subject of examination: Justice administration deputy’s request about the execution of article 18, section 2 of the public and revolution court’s law relative to the verdicts No. .. issued by the branch … of Tehran public court.

Forum: The branch … of the State Supreme Court

The branch board: Mr. … & …. & …. And …. From the State Supreme Court.

The summary of case procedure

Mr. … has presented a petition in 17.6.94 based on demanding the delayed rentals to the branch 75 of Tehran second legal court. According to the copy of ownership document No. 3948/9, he has announced: Mr. …, the defendant has lived in the apartment of which I am the owner of 3 shares. He has been my lessee since 14 years ago and denied to pay the rental so far. Therefore I request the court to convict him to pay 8400000 Rials (50000 Rials per month). This court, regarding the amount of claim object, has sent the case to Tehran first legal courts with the writ of lack of competency. The case is sent to the branch 31 of Tehran first legal courts. Mutually, in 6.5.95, Mr. .. has presented a petition against Mr. … and … to the branch 31 of Tehran first legal court and asked for the obligation of defendants to regulate a formal document of transfer for a six shares apartment and announced: I have bough the apartment from the defendants according to the copy of the binder (written promise) attached to the case in the year 1977. I have paid all the price of the apartment except 20000 Toomans and possessed it. Therefore I request the court of reject the claim of Mr. … about demanding the rentals. My house has been appeased to robbery and the main binder has been stolen, but the evidences and the witnesses’ statements confirm my claim. Moreover I have paid the taxes of the apartment according to the receipts. Therefore, I request the court to inquire the bank to become evident that I have paid the taxes. The court can ask the revolution prosecutor’s office to send the defendant’s profess about selling the property.

Mr. … , in reply to the claim of “acceptance …. “ has stated that the copy of the binder has been forged and it is false. Because, it is said in the petition that the binder is related to 1977, but in the witnesses’ statements it is said that the binder is related to 1976. Moreover, the names of the persons who have signed the binder are not observable on the copy. Also, the date of inquiries are related to the year 1981 and later on.

So, these can not be the reasons of transaction and can’t prove the plaintiff’s

After inquiring the Registration Administration and listening to the witnesses’ statements, as described in the verdicts No. 866-867-30.10.97, the forum announces that the transaction has happened according to the articles 220 and 362 of civil law and obliges the defendant to regulated the formal document of transfer. The claim of demanding the rentals is rejected. This judgement is requested to be reviewed. But the revision request is rejected by the branch 10 of the province’s revision court according to the verdict No. 269-26.7.98, because it has been requested out of the extension time. Finally, justice administration deputy asks for the execution of article 18 of public and revolution court’s law for the reason of the mistakes, which have been done. Therefore the case has been sent to the State Supreme Court and it has been referred to this branch and registered by No. 120/2/3. The branch board was held in the above date. They read Mr. Ziya Noroozi’s report- the consular – and the papers. They consulted and issued the following judgement.

Issue

According to the report dated in 24.12.99, article 18 section 2 of public and revolution court’s law, the verdict No 866-867,30.10.99 issued by the branch 131 of Tehran public court and the issue No. 911-20.9.99 of the branch 10 of Tehran revision court, the justice administration deputy has asked for the examination of the case.

Now, the third branch of the State Supreme Court announces that: the cases, which have been taken as mistakes in the report of the judge dated in 24.12.92, are not correct. Because, the article 146 of civil judgement procedure law is related to the case that the copes of the documents have been presented as an attached documents. In this case, the main document must be presented to the court during the procedure. In the case that the document is common or it is doubtful or denied, and its main copy isn’t presented to the court, the court won’t accept the common document as one of the plaintiff’s reasons. But, the determined judgement in the article 140, is against the principle (of necessity of examining the reasons) and spoils the beneficiary’s rights. So, we must be cautious to use this judgement and don’t extend it to the cases, which haven’t been specified in the mentioned article. Because, according to the article 74 of civil procedure law, the plaintiff must attach the copy or picture or graver of the document to the petition. But they haven’t been considered in the article 146. In the mentioned case, what has been relied on, is the attested photocopy of the common document ont its copy. The regulations of article 311 of civil procedure law is too about the common procedure. Moreover, it must include the execution of mentioned procedure in the article 309. Whereas, according the article 11 of public court law approved in 1979, the examination of all legal claims (regarding the regulations of short procedure), is based on the form which has been determined in the judgement procedure. Claim procedure (by draft transfer) has implicitly been abolished.

Secondly: It has been expressed that the evidences attached to the petition hasn’t proved the claim. It should be mentioned about this case that the plaintiff has relied on this evidence from two aspects: 1. The necessity of examining the reasons 2. The executing of the regulations of article 28 of public court law (approved in 1979) which has legal credibility now. This article states that in all legal affairs, in addition to examining the reasons. The court will do any research or action to discover the truth. The court must legally inquire the witnesses. But there is an objection to the verdict of the branch … of Tehran public court. It seems that Mr. … are of the defendants of the “acceptance…” claim has expressed that the copy of blinder (which has been presented by the plaintiff) is false and forged. According to the article 379, which includes the article 377 of civil procedure law, the claim of forgery of documents must be planned with mentioning the reasons of forging. Otherwise, the court doesn’t accept it. Mr. … hasn’t presented any reason to prove the forgery of documents too. But, paying attention to the article 28 of public court law (approved in 1979), the court must examine the mentioned document to know if it is real or not and them issue the judgement. About the issue No. … from the branch … of the province’s revision court, it should be mentioned that the death of one of the defendants doesn’t give any permission tot he court to issue the writ of not listening to the claim. According to the article 513 of the mentioned law, the writ of stopping the procedure must be issued against the defendant. Therefore, according to the related regulations and the precedent judgement No. 629-19.1.98 of the State Supreme Court’s public board and by using section (b) of articles 326 and 412 of public and revolution courts’ procedure law, the verdict of the branch … of Tehran public court, and the issue No. …, the branch … of Tehran revision court are breached by the reason to the mistakes which have been done during the procedures. The further examination of the mentioned claims (including the main claim and the claim of “acceptance ..”) and taking legal decision about the claims are referred to  another branch of Tehran public court.

The chief of the branch: ….

Advisor: …….

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 The objection of Guardian Council to the draft of reviving the prosecutors’ offices

At it’s mentioned in the first copy of “Ghezavat” magazine, the draft of correcting the law of the public and revolution prosecutor’s office was returned to the Assembly with 14 items by the Guardian Council (after it had been approved by the judicial commission of the assembly):

A) Previous cases:

1. Paying attention to the phrase “ martial court, specific court”, under the article (1), it hasn’t been specified that the special Disciplinary Tribunal for the clergy is included in the public or specific court. So, it has ambiguity. After removing the ambiguity, the opinion will be expressed.

2. Under the article (3), it has been specified that: “until the approval time of judgement procedure, it will be acted based on the principles of penal convictions and its next corrections, the law of non-litigious matters and other laws”. Disregarding the various religious objections that the council has previously expressed about some of the articles of the above lave and the obliquity of the phrase “other laws”, since this law is abolished, therefore it is against the principles 72,74 and 94 of Constitution Low.

3.In the note (4) of article (3), it has been stated that “the case which is the subject of note (1) of article (4) is sent to the related province’s criminal court in every stage of examination”. Since the persons who are the subject of note (1) of article (4) includes the clergy, so it is against the religious scales and the principle 57 of the Constitution Law. Since it includes the martial staff, so it is against the principle 172 of the Constitution Law.

4. In the note (4) of article (3), we encounter the phrase “sending the cases which are the subject of note (1) of article (4) to the province’s criminal court for the continuation of examination”. Such a statement causes the spoiling of people’s rights. Therefore it is against the religious scales and section (2) of the principle 156 of the Constitution Law.

5.There is the same difficulty as the one under section (3), under the note of article (4).

6. According to the note of article 12, the judges who undertake numerous duties in judicial affairs simultaneously, have been obliged to do their duties just in one branch of the court. In cases that new judges undertake the mentioned duties, it causes an increase in public expenses. Since it hasn’t been in the state draft, so it is against the principle 75 of the Constitution Law.

Note: At the top of article 12 the following sentence is correct. “ The chief of the justice administration.

The chief of the judicial area and the chief of the first branch of the court are the administrative chief of the courts.”

7. In the note 3 of article 13, the conditions which have been determined for taking charge of judicial positions limit this affair. Therefore it causes disturbance in judicial affairs and spoils people’s rights. So, it is against the principle 156 of the Constitution Law.

8. Section (6) of article (14) has the same objection, which there is in section (6) and under the section (7).

9. Paying attention to the content of article 18, “it is necessary to specify whether the article 235 of public and revolution courts’ procedure law (in criminal affairs) has been abolished or not.”

From this aspect the sentence has ambiguity. After removing the ambiguity, th council will express its opinion.

10. In the note (2) of article 18, the clause “during one month for the request of revision to the branch or part of the court that the branch distinguishes” is against the religious scales.

11. In the note (3) of article (18), the clause “the writ of rejecting the request of revision relative to the request of plaintiff who doesn’t pay the expenses during 10 days of the notification of the branch office (although he has an excuse)” is against the religious scales.

12. The content of note (4) of article (18) states that “none of the decisive judgements can be reviewed even though it has some mistakes”. This statement is against the religious scales.

13. It has been stated under note(1) of article (20) that: “ it is examined according to the regulations of criminal trials lows approved in 1958 and 1960”. Since these rules have been abolished, it is necessary to pass some legal stages if we want to apply them again. So, they are against the principles 72,74 and 94 of the Constitution Law. It is against the religious scales and the principle 156 of the Constitution Law if political offenses and the offenses, which are related to the periodicals, are examined just in the province’s criminal court, because in some cases it causes to spoil the people’s rights.

14.The note (3) of article (22) includes non-discretionary punishments too. That’s why it is against the religious scales.

B) New cases:

Almost all of the objections were removed by the assembly to consider the Guardian Council’s opinion. Moreover, some new articles were added to the draft. But the Guardian Council expressed five objections again that we review them:

The draft of “corrective law of public and revolution courts” has been corrected and approved by the Islamic council assembly in 2002.23.4. This draft was set forth for discussion in the Guardian Council whose opinion is announced as follows:

1. The mentioned courts in article (1) have been limited to public and specific courts. The situation of the Special Disciplinary Tribunal for the clergy hasn’t still been distinguished. It must be distinguished whether this tribunal is included in public or specific courts so that we can express our opinions.

2. Paying attention to the mentioned statements of Islamic Council Assembly’s commission in legal and judicial affairs, the objection as section (10) has almost been removed. But it you mean that after passing one month, the chief of judiciary power can’t issue a judgement too (about a case, which has some mistakes,) and refer the case to a competent authority, this prohibition is against the religious scales.

3.   If the note (4) hasn’t charged, therefore the objection of section (12) is in force.

4.   About the unchaste offenses (like adultery and pederasty) which include punishment, if the aren’t any other important subject like kidnapping, a band of immoral persons or to the corruption’s, it is against the religious scales that a person other than the judge of the case examines it to discover and prove the offense.

5.   It is against the religious laws to refer the judicial affairs to the administrator of court’s office who doesn’t have the judicial notice.

Note: Paying attention to the fact that procedure law of public and revolution courts in criminal affairs approved in 1999 is experimental (for three years) and its extension finishes in 2002, it is necessary to distinguish the limits of extension, duties and authorities of the prosecutor’s offices later on.

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The possibility of returning

Mr. Nassau Seraj – Tehran justice administration deputy-, Seyyed Mohammad Ahmadi- the advisor of the council affairs- and Mr. Nader Nafar – the council administration expert, visited Sweden, Finland and Norway of two weeks, They visited Iranians who were residents in these countries and talked to them about their legal problems. The following text is the report of this trip., that the respectable readers can read it. While appreciating these actions, by this way and by using the laws (such as article 173 of the law procedure of public and revaluation courts in criminal affairs), it is possible to give more services to the countrymen who live in abroad.

Introduction

Some Iranians have previously gone out of the country without passport or illegally and they live in foreign countries. They desire to return to Islamic native country but they are afraid of the punishments, which have been determined in passport law about the returning of countrymen to the country. It was not possible to examine these offenses at the absence of the person. Therefore, regarding these matters, the respectable chief of the judiciary power issued a judgment, which makes it possible to examine the case at the absence of the offender. The judgement is notified to the person who has illegally gone out of the country. On this regard, 5000 judgements have been issued by the court, which is situated at the airport for these applicants from 2000 to the first half of his year. About 500000 dollars have been deposited to the state account by these applicants. Such persons who have returned to the country without using these facilities, have paid the fine at the airport in Rial (Iran’s currency). In 29.12.2001, the Foreign Ministry suggested examining the legal problems of Iranians who live in other countries and those who have illegally gone out of Iran. So, a board composed of the above-mentioned persons was sent to the above mentioned countries. They talked to Iranians who had problems and issued required permission for these persons. In Sweden, about 90000, in Finland, 5000 and in Norway, 10000 Iranian’s live. About 60 newspapers and magazines which are published in Persian language and 8 centers of radio and TV are trying to show a bad face of the regime. In such a situation, sending the mentioned board to these countries had a very positive effect on the Iranians’ thoughts. For example, there was a person who had PL.D in Molecular Immunology and was the administrator of a large complex and university teacher. The expenses of his study in Sweden had been paid so that he had to return to Iran. But he hadn’t returned. Now he was sorry and desired to come back. But he has been threatened that in the case of his returning to the country, he will be gone on trial in a martial court. So, he feared from returning. The board talked to him and provided some facilities so that the mentioned person can return to the country.

In Norway, also, another graduated Iranian presented some invitations, which have frequently been, sent to him form the U.S. He expressed that he didn’t have any desire to cooperate with them, and wanted to work in Iran. But he was worried about returning to Iran for the reason of poisonous atmosphere which Persian language mass media had brought out. He was permitted to return to Iran without any worry.

The operations which have been done in Sweden, Finland and Norway

1. The formation of several sessions with the presence of these countries’ representative and consular authorities; justifying the related authorities in dealing with the applicant and making Iranians who have problems understood about legal cases.

2. Regarding previous coordination, most of Iranians who have

illegally gone out of the country, refer to the consulates and required operations are done for them at the same day.

3. Having session with Iranians who live abroad and listening to them (These individuals were guided separately so that they become happy and satisfied.)

4. The board referred to the places where Iranians had stores or worked to examine their problems closely. They talked to these persons and while listening to their problem guide them.

Observations

Although, some help and facilities have been provided for Iranians to return to the Islamic native country, most of them fear to return as a result of poisonous atmosphere and bad propaganda which foreign mass media have some against the Revolution. It is necessary to find a solution for this problem. (Usually, those Iranians who work in foreign countries, are worried to return to the country, because they fear to be forbidden from going out. It is necessary to solve the problem from this aspect) Martial staff, conscripts, and runaway soldiers fear to return to the country. In spite of sending application forms for issuing the permission of departure, the martial authorities refuse to answer the forms because the applicant is absent. It is necessary to provide some facilities in this regard. Iranians encounter may problems because they are not aware of Iran’s laws specially in the fields of marriage and divorce. For example, many of individuals refer to the foreign courts to divorce. The female individual marries again and brings children. But her divorce hasn’t been done religiously. So, the father of the children isn’t distinguished and the consulates can’t give ID cards to such children. The consulates suggested having a special branch in family court to examine the cases related to the marriages and divorces of Iranians who live in foreign countries. About delayed marriages, some Iranians refer to the consulates to register their delayed marriage. For the registration of these marriages, it is necessary to have health certificate and the permission of bride’s father. In the cases that the bride’s father is dead, or there isn’t any attorney ship from the bride’s guardian, the applicants encounter some problems. It is advisable to find a solution for this problem. All of the Iranians, who referred to the consulates, thanked the judiciary power and Foreign Ministry for these facilities.

Comment

Like the inadmissible passengers whose affairs are exclusively examined in the court, which is situated at the airport and has quickened the affairs desirably, it is suggested to specify a specific authority related to runaway martial staff. In this way, it is possible to send the applicant’s application form directly to that authority and get the answer. Most of martial staff fear to come back to the country because they can’t get a clear answer form legal authorities. At the end, we thank the ambassador and consolers of the mentioned countries, specially Mr. Bayat and Noghrekar Shirazi for the reason of their intimate relationship with the board and the facilities which they provided. It should be mentioned, in spite of being ready to set off for Denmark and Germany to solve Iranians’ legal problems, we couldn’t have opportunity to continue our trip. Therefore, it is suggested examining the problems of Iranians who live in these countries closely.

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 Orders of judges’ disciplinary court

A) Issuing the writ of prosecution based on conditional and dependent forgiveness is an infraction

Date of examination: 16.1.2001

Verdict No.: 912

Classified No.: 135/80 gh

No.: 1380/6/31-680 of the judges’ disciplinary prosecutor’s office based on the announcement of Mr. …’s infraction

The chief of the branch … of Tehran public court:….

Forum: The third branch of the judges’ high disciplinary court

Board of judges: Mr. … and …

Proceeding:

Mr. … the assistant to the public prosecutor general of the judges’ disciplinary prosecutor office-has examined the cases, which are the subject of disciplinary complaint presented in the branch … of Tehran public court. He has expressed that the judicial action of the court’s chief in issuing the writ of stopping prosecution is conditional and dependent and it is not effective for the reason of the complainant’s forgiveness, whereas he has refused to announce his satisfaction. It has been acted against article 23 of Islamic punishment law. Moreover, in this case which is about dishonored cheque, it is not advisable to swear, because there are many reasons and documents. So, it is expressed that the person must be prosecuted from disciplinary aspect. The above opinion is agreed with. Therefore, according to above indictment, and based on the second half of the constitution’s article 20) related to the recognition of the judges’ faults, the judgement of disciplinary prosecution of Mr.…, the chief of the branch … of Tehran public court has been issued. The issued indictment was sent to the mentioned judge. He has professed (in a draft, which will be read at the time of consulting,) that he has made a mistake for the reason of having much work to do. Now, the judges’ high disciplinary court has been held. After reading the report of the affair and the received defense draft and obtaining Mr.…’s opinion - the judges’ disciplinary prosecutor’s office deputy – (based on “the request of issuing the conviction judgement of the judge), the court issued the following judgement:

Court’s issue

The documented report of indictment shows that the disciplinary defendant judge has issued a judgement of the writ of stopping the prosecution based on

The complainant’s forgiveness without paying attention to the fact that the complainant’s forgiveness hasn’t resulted in his satisfaction. It is an infraction as the judge himself has professed. Therefore, Mr. … the chief of the branch … of Tehran public court is convicted to written reprimand which must be inserted in his records for the reason of infraction, according to the constitution’s article 14 about the recognition of judges’ faults. Another objection of the judges’ disciplinary court on the mentioned judge’s operation (to swear the accused) hasn’t been acceptable regarding the case’s conditions.

The issued judgement is decisive.

The chief: ….

Advisor:….

Minority opinion: Issuing the writ of stopping

The prosecution of the accused who has issued a dishonored cheque and issuing the writ of the rejection of the private complainant’s claim of damage demand, and according to the announcement of the complainant’s dissatisfaction, the issue is against the article 22 of Islamic punishment law and it is infraction of law. According to the constitution’s article 20, it is required more severe punishment. Therefore I am not agree with the majority issue.

advisor: ….

B) The lost draft, which has been registered in draft records, isn’t included in the records, which cause judgement after trial.

Files: 80/726

Verdict: 80/11/8 – 1268

Forum: The branch … of the judges’ high disciplinary court

The board of judges: Mr. … & …. and ….

The case summary: The judges’ disciplinary court has announced some infractions against Mr. … according to the indictment No. 80/5/15-478.

Firstly, he has issued a judgement by default that if can be reviewed.  But, later, according to the corrective judgement, while implying to the lost draft No 78/2/5-285, he has announced the issued verdict as judgement after trial and rejected the claim of protesting. (He has acted against the articles 303 and 305 of the public and revolution court’s procedure law.) Whereas, the draft hasn’t been considered in the initial issue and it is lost. In this way, he hasn’t paid attention to the rejection writ of the court’s office. Thirdly, he has examined the case without considering the fact that no stamp has been attached to the verdict of protesting. Fourthly, he has issued the writ of execution against article 247 of the mentioned law.

After sending the indictment, Mr. … has sent a draft to defend himself that it will be read at the time of consultation.

Now, the branch … of the judges’ high disciplinary court has been held. After reading the case report and received defense draft and obtaining the opinion of the judges’ disciplinary court’s representative, the court issues the following judgement.

The court’s issue: The announced infractions against Mr..., the chief of the branch … of Tehran public court are briefly as follow:

1. According to the lost draft which hasn’t been considered in the issued judgement (but its registration number was observable in the index book), he has corrected the judgement by default and announced it as a judgement after trial. So, he has deprived the plaintiff from the right of protesting.

2. He hasn’t paid attention to the date of notification. The plaintiff has said that he has received the notice in 12.10.2000 whereas. The correct date of notification has been 7.10.2000.

3. He has issued the writ of execution for a case, which has been in the stage of revision.

The court believes that the mentioned infractions are obvious. Therefore, according to the constitution’s article 20 related to the judges’ fault recognition, the court convicts the mentioned judge and deducts 1/10 of his salary for three months.

C) The labor administration hasn’t executed the mediation board’s issue. This is a disobedience and considered as an offense.

The issue of the judges’ disciplinary court’s second branch

After issuing the judgement by the mediation board, and its certainty, according to the beneficiary’s request, the justice administration and the court undertake the execution of the judgement. In cases for which there is the writ of execution, and the court doesn’t have any right to change it, just the High Administrator Court is competent to cancel the mentioned issue. Consequently, Mr.….who hasn’t examined the objection on the mentioned issue, hasn’t done any judicial infraction. Paying attention to the fact that the accused has been understood the accusation and he has asked for a grace period, the claim of issuing the judgement in extraordinary time is not an infraction. The respectable chief of the Labor administration of Robak Karim City has refused to execute the issued judgement. According to the order of judicial position, since the place of execution of the judgement has been Robak Karim city, (even if the medication board of another judicial field has issued the judgement), the labor administration’s chief must have obeyed the issue. So his disobedience is interpreted as an offense. Therefore, issuing a judgement based on the conviction of the mentioned chief isn’t considered as an infraction. Therefore, in all of the above mentioned cases, Mr. … the defendant judge is acquitted. The rest of the cases, also, are not important and they aren’t infractions. So, the mentioned person’s acquittance judgement is issued.

D-It is necessary to issue the cash security about the cases of issuing dishonored cheque.

Proceeding: According to the contents of the case, Mr. … presents a complaint based on the issuing 5 dishonored cheques against Mr. … to the justice administration of Babol city. It is examined in the branch … of the public court. Mr. … too, has previously complained that Mr. … has court. Mr. … too, has previously complained that Mr. … has obtained some cheques by extortion. That case has been under examination in the branch … . Finally or Mr. …’s demand, that case is also referred to the branch … and is added to this one. The court’s chief issues the writ of bail and the accused is released by obtaining a bail. In the continuation, the case is examined by the judge.

Mr. …’s attorney, requests the court to intensify the security and change it from bail to cash security according to article 18 of “cheque issuance law”. This request is not accepted. Finally, the subject of extortion is sent to Tehran with the writ of the lack of competency. The judges’ disciplinary court has announced the following infraction by the indictments No. 80/5/18-484 and 485. It is stated in the indictment that Mr. …and … have issued the writ of bail against the explicitness of the cheque law’s article 18. After sending a notification to them, the mentioned persons have sent a draft, which is read at the time of consultation. The high disciplinary court of judges was held. After reading the report and defense drafts and obtaining the opinion of the judges’ disciplinary court’s representative, the court issued the following judgement.

The court’s issue

It is necessary issue the writ of cash security about the cases of issuing dishonored cheque according to cheque law’s article 18. Mr. … and … the chiefs of Babol public court, have acted against the mentioned law. So, they have committed disciplinary infraction. Therefore, each of them is convicted to receive a written reprimand, which must be inserted in his service record.

E) Issuing the writ of pledge even as the same amount as the cheque’s sum (which is the subject of cheque law’s article 13) isn’t considered as an infraction.

Case: 80/731

Verdict: 1384 – 80/11/11

Forum: The branch … of the judges’ high disciplinary court the board of judges: Mr. ... and … and …

The summary of the case: The judges’ disciplinary

Court has announced an infraction against Mr. … the chief of the branch … of Ashtian public court, according to the indictment No.80/5/21 –291. It’s stated in the indictment that he has issued a writ of pledge less than the amount of the cheque about a dishonored cheque which is the subject of cheque law’s article 13. The indictment was notified to the defendant judge and he defend himself by a draft which will be read at the time of consultation. Now, the branch … of the judges’ high disciplinary court has been held. After reading the report and defense draft, the court issued the following judgement.

The court’s issue

Issuing the writ of pledge for cheque (which is the subject of cheque law’s article 13) isn’t an infraction. Paying attention to the fact that the subject of the indictment hasn’t been about providing the object of claim or damages. The judge must recognize the amount of writ from the aspect of cash security. Therefore, the court issues the acquittance judgement of Mr. … the chief of the public court.

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The special report 

A brief looks at Vali-e-asr judicial complex

 The Vali-e-asr judicial complex has been situated in West Side of Monirieh square. Aboo-Saied 112, Razi 115 and Jami 129 police stations have been situated in the complex’s judicial field. This complex must have two deputies, 20 branches of public court, 15 judges, and advisor and 12 interrogators in its organization. But it has just 13 branches and 6 judges. From the 13 active branches, 4 branches examine legal affairs, 2 of them examine the dishonored cheque and 7 of them examine the criminal affairs. By the end of 2001, (according the provided report), there are 4458 cases based on the existing statistics of the courts branches, and 7694 cases based on the statistics of the judgement execution branches including criminal (penal) and legal (civil) issues. The time average of examining the cases is less than three months and the shortest time of examining is less than one month. The minimum existing cases of the court’s branches are 21 and maximum 745.

Hossein Banafshe – the chief of the public court’s branch 103

It is necessary to increase the staff’s scientific level

Mr. Hossein Banafshe has BA in Law science. By computing his service period in judicial police, now he has 20 years of judicial and administrative experience. Before the interview, he talked about the judiciary power’s problems. He believes that parts of the problems are related to the judiciary power and the rest of them are related to the society.

1. As you know, one of the main problems of the judiciary power, is the shortage of judicial and administrative staff and the shortage of necessary possibilities and instruments for the judicial organization.

What do you suggest to solve this problem?

Although the subject you referred to, is one of the judicial development’s prohibition, it will be easy to pass the way of judicial development if them are exact planning about it. The first action is to employ some adequate and experienced individuals (including judicial and administrative). The second action is individuals’ training during their services so that their scientific level is increased in accordance with the conditions.

Also, in relation to the staff’s welfare affairs, it must be thought basically so that they can do their jobs better.

The second subject is the formation of judicial police. If these forces are formed, many problems of criminal cases and the execution of judgement: including civil and criminal, are solved. Because, the main problems of justice administration which are related to criminal cases, are primary investigation and the arrestment of the accused.

The next subject is the compilation and approval of required and necessary rules and removing the conflicts which there one between them.

2. One of the main problems of justice administration is the large number of cases. In your belief, law can we prevent from the formation of new cases?

In my belief, one of the most important thins is to prevent from the formation of criminal and civil cases by using mass media, formation of guidance and help unit and using the Bar Association. One of the effective ways, by which we can increase people’s awareness, is to use university teachers and retired and experienced judges and attorneys in different centers. By this way, before any legal action, after getting enough information, and probably under the supervision of these individuals, people can do their affairs, so that they aren’t damaged for the reason of not being aware. In the cases that these centers are situated, before any transaction for movable and immovable property. People can consult with these individuals, so that in the case of arranging any contract, they consider its legal aspects. Now, most of legal problems are the results of people’s lack of awareness of legal regulations. So these individuals can reduce these problems effectively.

3. Prevention from happening an offense is very important. Paying attention to the different fields of committing offenses in the society, what can be done to prevent from misdemeanor operations from judicial aspect.

Although, it is necessary to determine punishment for an offender, it is considered a struggle against the result not the reason of the problem. To solve this problem, other powers must cooperate. By the approval of rules, which are suitable from time and place aspects, and executing them on time, we can relatively change people’s living situations. For example we can refer to the problem of unemployment.

4. Paying attention to the problem of unemployment, if a person committees an offence because of providing his living needs, how will you deal with him? Does the law consider mitigating conditions in dealing with these people?

The causes of decreasing punishment have been mentioned in article 23 of Islamic punishment law. There is a difference between a person who is unemployed, has family and can’t provide life’s expenses, so he has to commit an offense, and a person who is rich but commits the same offense. The judge is aware of these differences too. Because the first one was forced to commit an offense for the reason of urgent needs, but the second one wants to enjoy more benefits. So, at the time of issuing the judgement, the same punishment can’t be considered for them by the judge.

In the continuation of the discussion, the chief of the branch 103, referred to the culture’s poverty and said: Whatsoever the level of people’s culture and believes in crease, the level of offense’s commission decreases. Those who have deeper religious believes, do fewer offenses. The situation of judicial centers in the holy month of Ramazan prove this claim.

According to the existing cases, we can claim that the commission of offenses reaches to its minimum degree in this month.

Mohammad Javad Foadian – The chief of the public court’s branch 106

The judicial decision is prior to administrative one

Mr. Foadian is passing religious studies in the level of Karej lesson. He was previously Boroojerd court’s deputy and the chief of Dorood and Koohdasht courts. Considering these records, he has worked in judicial power for 11 years.

1. During the period of your judgement, you have certainly dealt with the accused who have disobeyed the judicial order and therefore, they have been referred to the courts and their cases have been examined. Some of these accused believe that their actions are according to the legal scales and administrative orders. Paying attention to the conflicts which there are in this field and considering the fact that both orders are situated in its own frame, do you as a judge believe that administrative or judicial order has priority?

While thanking to dear persons who try to publish the valuable magazine of Ghezavat, I must say that some of the published subjects were useful for me. So, I must thank and appreciate them.

In answering your question, I don’t remember to examine such a case myself. But, I know judicial order more important than administrative decision. Because, according to the rules and regulations, the necessity of judicial judgement’s execution is more than the execution of administrative orders. Yet, it has been observed that, specially in the city council, there are some differences in the opinions of judicial and administrative members. Some times, the social and security interests are prior to the execution of judicial order and consequently, in the council, the priority is given tot he administrative decisions.

2. As you know, the expert’s opinions of the justice administration help the judge to issue the judgement. Surely, if these opinions don’t enjoy firmness, they can bring about some problems. What is your opinion in this case?

We can say many things about the procedure of respectable colleagues in the expertness stages of the cases in criminal and legal (civil) affairs. Since I deal with legal (civil) affairs, I believe that some experts don’t enjoy required training.  Even, they don’t know the difference between key money and business-money. It is necessary that the experts start the examination of the case with enough information. In some cases, the respectable expert doesn’t pay attention to the necessity of presenting explanations, which are requested by the court, and he insists always on his ambiguous opinion. Consequently the case encounters delay in judicial decision for the reason of the lack of explanation. Of course, I expressed these weaknesses so that the affairs are corrected. Yet, I know that there are many individuals within the experts who must be appreciated.

Gholam-Reza Jafari, the chief of the public court’s branch 107

The revival of the prosecutor’s offices is a step to reduce the number of cases

Mr. Jafari was born in 1959. He has been in charge of Vale-e-asr judicial complex’s branch 107 from the beginning of its establishment. This branch examines mainly the criminal cases. He has already worked in Imam Khomeyni complex. He believes that the most important problem of judicial system, is the shortage of judicial and administrative personnel. Also, he attracts the attention of authorities to the improvement of the staff’s living situation to increase their spirituality. From Mr. Jafari’s point of view, the revival of the prosecutor’s offices is a positive step to reduce the judicial cases. But, it must be said that the formation of the prosecutor’s offices is not the only solution. He believes that the scientific basis of the judges and administrative personnel is effective in the examination of the cases, which are referred to the offices. In his belief, the regulation of the employment of administrative personnel must completely be considered. In this way we can quicken the way of administrative work by employing active and suitable staff.

Mohammad – Ghasem Karimian, the alternate judge

We must not sacrifice quality for quantity

Mr. Karimian has 8 years of experience in judgement. At present, he is passing the period of Kharej lesson (in religious schools). He has worked in Zahedan, Bandar-abbas and Robat-Karim cities for several years. Now he is the alternate judge of Vali-e-asr judicial complex. He examines both criminal and civil cases.

The branches’ variability and also the variant and numerous cases, which must be examined by the judges, decrease the judges’ thought concentration. Because, as you know, the judges must wait every day to receive the notice of the complex’s chief to examine the case instead of the chief of the branch (if he is absent). (What is your opinion in this case?)

Mozaffar Noorayee – The chief of the public court's branch 110

The revival of the prosecutor’s offices is a step to reduce the number of cases

Mr. Noorayee has BA degree of law from high judicial school of Qom City (dependent on Tehran University). He has 24 years of experience in administrative and judicial affairs and has worked in the judicial complex for 3 years. He has already worked in the justice administrations of Namin, Ardebiland Khomein cities. At the beginning of his speech, he talked about the numerous problems of the complex. He believes that the shortage of interrogators is one of the insufficiencies, which has encountered the judges with many problems. In his beliefs, the complex’s work volume is so great that nobody thinks about these shortages. On the other hand, none of the branches enjoys the suitable space and atmosphere. Even the lobby is limited and small. This problem is unpleasant for both people and administrative and judicial personnel.

It is for a time that we hear about judicial police units. What is your opinion in this field?

If we could establish the unit of judicial police sooner, many problems were solved. Even, if we can’t access to this aim in a short time, it is better to determine the executive forces, which must be in the judicial complex during office hours. In this case, we can quicken the examination of the files. Because, their forces are replaced with the judiciary power’s bailiffs such as disciplinary and mobilized forces and do the duties of notifying, executing, … . It has frequently happened that the parties must be notified for the examination of the case, but many branches haven’t been able to notify them on time. Because, the bailiffs are busy and involved in the administrative problems of their office and can’t work for the judicial trials all the time. So, it causes the interference of the affairs.

Lotfollah Naseri – The complex’s office administrator

The complex has least welfare possibilities

Mr. Naseri has 29 years of administrative experience and he is one of the old staff in this complex. He started his activity as the office administrator in 1998. He has already worked as the archivist, registrar, the court’s secretary, and the person who is in charge of registering the legal petition. As a result of his job, he is aware of the complex’s situation from quantity and quality aspects more than others. He believes that the complex has limited space from administrative aspect and it is not possible to archive the files adequately. The dead records don’t accept the finished files.

It’s not a long time that the computer unit has been established. This new established unit can’t deal with the judicial complex’s affairs. It is used just for the registration of complaints and results of the files for which the judgements have been issued.

One of the interesting and unpleasant points of this interview was the fact that, this complex has the least possibilities. He said that from the beginning of the establishment of this complex, the lift has been out of order and people and the personnel encounter problems to do administrative affairs.

Lotfollah Naseri – The complex’s office administrator

The complex has least welfare possibilities

Mr. Naseri has 29 years of administrative experience and he is one of the old staff in this complex. He started his activity as the office administrator in 1998. He has already worked as the archivist, registrar, the court’s secretary, and the person who is in charge of registering the legal petition. As a result of his job, he is aware of the complex’s situation from quantity and quality aspects more than others. He believes that the complex has limited space from administrative aspect and it is not possible to archive the files adequately. The dead records don’t accept the finished files.

It’s not a long time that the computer unit has been established. This new established unit can’t deal with the judicial complex’s affairs. It is used just for the registration of complaints and results of the files for which the judgements have been issued.

One of the interesting and unpleasant points of this interview was the fact that, this complex has the least possibilities. He said that from the beginning of the establishment of this complex, the lift has been out of order and people and the personnel encounter problems to do administrative affairs.

Hasan Fallahi – The chief of the public court’s branch 105

Training periods must be increased

Mr. Fallahi as 14 years of judicial experience. During his service, in Arasbaran, Hashtgerd, Karaj and finally in Tehran, he has worked as an assistant to the public prosecutor general, interrogator and chief of the branch.

We asked Mr. Fallahi to talk about judges training periods. He confirmed the subject generally and said: If the justice administration desires that the judicial staff become scientifically strong, they must try to decrease the pressure of the judges’ daily work. Because, one of the ways of improving the scientific level of the judges, is the continuos study of law books. But now, they don’t have enough opportunity to study. It must be said about training periods that they have been useful for most of the judges. Especially if a person has participated in the classes continuously, he has used the subjects which have been discussed between the teachers and judicial colleagues.

We asked him to express his opinion about settling some judges in police stations. He said: I believe that (in the case of having enough judicial personnel) the judges must be present in police stations and even in prisons. Sometimes, there are some cases against the law in these places that the judges’ presence can prevent from violations. He said that in his branch, 130 to 160 cases during a month and 10 to 15 files during a day are examined.

Nozar Bardareh – The chief of Vali-e-asr judicial complex

We must try to solve people’s problems

Mr. Bardareh was born in 1954 in Baft City. He got his diploma there and then in 1977 he entered Tehran University’s law college. After getting his BA, he got the MA degree of law in Azad University.

Mr. Bardareh started his work in the year 2000. He worked in Zanjan, west and east Azarbayjan and Hormozgan provinces. In 1995, he started his work in Imam Khomeyni complex and at the time of opening of Vali-e-ase judicial complex in 1998, he became the administrator of the complex.

He believes that according to the approved by-law, the complex have 20 branches, 15 judges and advisor, 12 interrogators and 2 assistants. At present, it has 13 branches which 3 of them don’t have any administrators. The complex has 6 judges who 3 of them administrate the mentioned branches.

Although this complex has been situated in old parts of Tehran, it is the neighbor of high-incidence of crime areas such as Razi, Gomrok and Qhozvin squares, so that people refer to this complex very much. Most of the references are about robbery, cheating, forging and collective struggles. On the other hand, since Jomhoori and Vali-e-asr streets one of trade centers, the cheque files form the high percentage of the cases in this complex. The judgement execution unit has 2 branches and the civil judgement execution unit has one branch.

From the aspect of computer system, just the part of petition registration is active. The notification of judicial powers is done by post and supervised by the notification unit. To facilitate people’s affairs, we have a unit for writing petition.

In the complex, there are 4 legal (civil) branches, 2 branches which examine the offenses related to cheque and a branch which examines the files of robbery, and the rest of the branches examine the criminal problems.

Perhaps, one of the most important parts of this complex, is the unit of judgement execution. This unit is new established. So, it was decided that the respectable deputy of the judgement execution unit must always be present in the place and answer the people.

One of the effective way for decreasing the time length of procedure, is that in the case of referring a civil file to the branch of civil court, the office administrators will be obliged to control the file. If there is any deficiency in the file, they notify the plaintiff or his/her attorney as soon as possible, so that the plaintiff must remove the deficiency during 10 days of the date of notification. In the case that no parties came to receive the notification and the writ was issued, it can be revised.

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Around Table

The report of judicial and legal commission

The answer to the questions No.222 to 226

222. Which article of Islamic punishment law (discretionary punishment awarded by the judge) includes the forgery of “bus –driving transportation company’s tickets?

The opinion of Tehran’s Result judicial complex:

According to the majority’s opinion, it is included in the article 536 of Islamic punishment law, for the reason that the document is common. According to the minority’s opinion, it is included insecurities, because some money is paid in return of it. So, it is included in Islamic punishment law’s article 528.

The opinion of Tehran’s Shahid Mahallati judicial complex:

According to the opinion of all judges of the complex, the forgery of the “bus-driving transportation company”, tickets is included in the Islamic punishment law’s article 536. Because, paying attention to the definition of ticket, the mentioned company’s tickets are included in documents and informal writing and the article 536 of the above mentioned law states that the forgery of every kind of documents and informal writing.

The commission’s consultative opinion:

The majority’s opinion:

According to the definitions of ticket and forgery and explicit statement of Islamic punishment law’s article 536, the ticket of “bus-driving transportation company” is a kind of informal writing whose forgery includes punishment according to the mentioned article. Because, there is no doubt that the mentioned “ticket” is considered a piece of “writing” according to the definition of Islamic punishment law’s article 523.

The minority’s opinion:

It seems that the legislator knew that the ticket of the mentioned company is forge. So the legislator didn’t included the person who has forged in the punishment by the approval of Islamic punishment law in 1996. Therefore, since there isn’t any legal element, we can’t punish such a person. But, perhaps, we can interpret such a person a fraudulent (because he has obtained some money as a result of forgery) and punish him. Of course, this point of view also is against the criminal rules (according to the narrow comment of these rules).

223- If a cheque is given for the security of a leasing house’s evacuation, and the lesson presents a criminal complaint against the person who has issued the cheque before reaching to the date of evacuation, it his action considered as treachery in security?

Kiyazad, Tehran’s Resalat judicial complex:

The majority opinion:

Paying attention to cheque’s abstract quality, (apart from an other offense) its punishment has been determined in the article 13 of cheque law. Therefore, he can’t be punished again. On the other hand, since the issuance of security cheque is an offense, so presenting the complaint is a legal action, and it isn’t considered as treachery in security. But if it was a Bill of Exchange, it was considered an offense and the other party had right to complain. (But it is considered as treachery in security.)

Sedghi, Shahid Mahallati judicial complex:

According to the opinion of all judges, in the case that the court understands (according to written contract or any other way) that the cheque has been given to the lessor as a security (and they had agreed if the lessee didn’t evacuate the lessor has presented a criminal complaint before reaching the mentioned conditions, his action is considered as treachery in security and he can be punished according to the Islamic punishment law’s article 674.

Farahani, Qhods judicial complex:

The majority’s opinion:

Paying attention to the contents of related articles, article 13 of the corrective law of cheque law and the Islamic punishment law’s article 674, firstly, issuing cheques as security is forbidden. This prohibition is effective from legal and social aspect. It means that nobody must do something, which is forbidden. Therefore, if anybody committed this prohibited action, his action is an offense and he can be punished. Some say that these cheques are issued any way or it is said in the second part of the article “in the case of not paying, the person who has issued the cheque can be punished”. This statement doesn’t cause anybody to issue such cheques. It means that the offense can be forgiven. Therefore, according to the explicit article of the law, the issuance of such cheques is forbidden. Secondly, by paying attention to the content of article 674 of the Islamic punishment law, we understand that the properties including moveable or immovable ones or writings such as bill of exchange, cheque and so on can be rented, deposited as security of mortgaged. We can’t add any other title to the existing titles in the law. So it must be recognized how a cheque can be given to another person. Is it possible to rent it or put it on pledge or just give it to somebody as a security? Therefore, one of the cases of offense is treachery on security. So, if the cheque has been given to another person under the titles of “the security of evacuation”, “paying a deft”, “regulating a document” and so on, since these titles haven’t been mentioned in the law and considering the principle of law comment, we can’t consider security as one of the mentioned titles in the law, so the action isn’t considered as an offense according to the article 674 about pledge and lease. Thirdly, inspire of the above mentioned cases, if it is said that the contract between the parties states that the person who has received the cheque doesn’t have right to complain until the term of lease expires, this contract is against the explicit article 13 of cheque law and according to the article 10 of civil law, it is not effective, and doesn’t have any legal authenticity. Also. A forbidden thing can’t be deposited as a security. In addition to the above cases, the lessor complains before the term of lease’s expiration, so that it isn’t included in article 11 of the law, it is obvious that the person who has issued the cheque, doesn’t pay the money, and according to the contract, he presents the complaint of treachery on security. Does the court can choose any other way except recognizing the person (who has issued the cheque) as and offender? If the court recognizes him as an offender, can the complainant’s action be recognized as treachery of security?

The commission’s consultative opinion:

The majority’s opinion: According to the article 617 of civil law and explicit article 674 of Islamic punishment law, since, the subject of offense (treachery in security) is related to the property itself or the instrument of obtaining property like cheque of bill of exchange, and according to the agreement between the parties (depositor and trustee) which says the lessor doesn’t have any right to do any action against the lessee until the term of lessee’s expiration, in the case that a complaint is presented to the court against the lessee (depositor), the trustee (lessor) has committed treachery in security and deserves punishment.

The minority’s opinion:

The legislator has given the right of criminal complaint to the person who has certified cheque according to the article 13 of cheque law approved in 1993, so he can’t be punished. Because, the law of cheque issuance is for organizing the individuals’ relations and keeping the society’s order. The person, who has got the certified cheque, not only he has committed any action against the law, but also he has acted just according to the related regulations if he presents a complaint. His action has legal basis an authenticity. An action, which is in accordance with law, is not an offense even if it is against the private mutual contract.

224- If it is mentioned in a contract that “in the case of having differences in the comment and execution of the contract, both parties must refer to arbitration”, can the court examine the claim of this contract without the parties’ preliminary reference to the arbitrator?

Mr. Kiyazad, Result judicial complex:

The majority’s opinion:

The court can’t examine the case, for the reason that: 1- both parties have agreed to refer to arbitrator. Arbitration is a legal institution and it is used to remove the struggle and prevent from entering the justice administration;

2. Paying attention to the principle of ruling the parties’ will, the claim can’t be examined by the court.

The minority’s opinion:

Firstly, since in the civil procedure law of the year 2000, it hasn’t been specified, therefore, paying attention to the principle of trials’ examination, the court must examine the case. Secondly, in the case that both parties enter the court and present the petition, it means that they disregard the primary contract and the second will, replaces the first one.

Mr. Sedghi, Shahid Mahallati judicial complex:

The opinion of all judges:

Paying attention to this fact that the condition of arbitration mentioned in the contract, is regulated in the civil law’s article 10, and it is enforceable between both parties, presenting the claim in the courts before referring to arbitration, is against the parties’ contract and agreement and it cancels part of the contract. On the other hand, although, according to the Constitution Law’s principle 159, the justice administration is the formal authority for complaining, it doesn’t mean that the “preliminary reference” is the main opinion of Constitution Law. Nevertheless, after receiving the arbitration award (in the case of award’s cancellation or invalidity, the parties can refer to the justice administration to adjudicate the right.

Mr. Farahani, Qhods judicial complex:

It is understood from the collection of arbitration articles No.454 to 501 in the public and revolution courts’ procedure law in civil affairs that generally the referring of claim to arbitration is either absolute or conditional. If it is absolute, it removes the court’s competency to examine the case, according to the above mentioned articles (except article 463). It means that, when the competent court is examining the case, by the court’s suggestion or the parties agreement to solve the problem by arbitration, the subject is referred to arbitration and the court’s examination stops, and the arbitrators examine the case and express their opinions instead of the court. In the first case that the contract is absolute, the court doesn’t have competence to examine the case and the subject must be settled just by arbitration. If we take this agreement as a contract, the principle of the necessity of contracts (which is not against the law but also the law has anticipated it) requires both parties to execute it. But, if the contract has conditionally been referred to the arbitration (i.e. they have agreed to refer to a specific person as an arbitrator, and that person doesn’t want or can’t examine the case as it has been determined in the article 463 of public and revolution courts’ procedure law in civil affairs), the court has competency to examine the case. But, it is necessary to pay attention to the subject, which has been referred to arbitration.

The majority’s opinion:

According to the necessity of contracts principle, and the legal institution of arbitration in the public and revolution court’s procedure law in civil affairs, and other rules, and based on the explicit article 454(1) and the opposite content of article 463(2) of the same law, referring the case (of difference in the comment and execution of the contract between both parties) to arbitration (except the cases for which the law has determined specific conditions)(3) is required for both parties and the case can’t be examined by the court. Both parties are obliged to solve the problem by arbitration. This case is not against the Constitution Law’s principle 159, because it has been anticipated in the law. (4)

Footnote

1.Article454: All the individuals who want to present a claim, can agree with each other to refer the case to arbitrator (whether or not the case has been presented to the court, or in any stage of examination if it has been presented)

 2.Article 363: Whenever the parties are obliged to refer to a specific person if there is any difference, and that person doesn’t want or can’t examine the case and the parties don’t agree on any other arbitrators, the court will examine the case.

3.Article 457: Referring the claims of public and state property to arbitration is done after the date of council of ministers’ approval and the information of Islamic Council Assembly. In the case that the other party is foreigner or the subject of claim is important, the Islamic council Assembly’s approval is necessary too.

4.The Constitution Law’s principle 159 states that the forum of examining the complaints is the justice administration. The formation of courts and the determination of their competency are based on the law.

 The minority’s opinion:

By the emphasis of Constitution Law’s principle 159 based on the fact that the justice administration is the forum of examining people’s complaints, and paying attention to the proceeding award No. 51667/10/20 approved by the Supreme Court’s public board, (5) in the case that one of the parties refers to the court, then isn’t any prevention of the court to examine the case. But also the judge is obliged to examine the case and issue a judgement. The parties’ reference to court shows that they have given up the first contract and indicates their second will.

225- Are the regulations of civil procedure law’s article 544, approved in the year 2000, about the compensation of delay in payment (which the subject of the note added to cheque Law’s article 2) in force or not?

Mr. Sedghi Shahid Mahallati complex:

According to the opinion of all judges, paying attention to the fact that the cheque regulations are specific particularly the regulations related to the delay in payment, but the regulation of civil procedure law’s article 522 are common. The common regulation can not abolish the specific ones. Moreover the regulations of added note to the article 2 of cheque law has been approved by the Expediency Discretion Council of the regime, whereas the regulations of article 522 of the mentioned law has been approved by the Islamic Council assembly. It means the approved regulations of the Assembly can’t abolish the approved regulations of the Expediency Discretion Council. Finally, the regulations of the mentioned law’s article 522 about the compensation of delay in payment (related to cheque) are not in force.

Footnote

5.The issue No.67/10/20-516: The principle 159 of Islamic Republic of Iran’s Constitution Law knows justice administration as the formal center for the examination of complaints. The constitution La’s principle 137 has specified that each minister is responsible for his specific duties against the Assembly and in the case that an offer is approved by the council of ministers, he is responsible for others’ actions too. Therefor the approved regulation No.1366/5/8-22-ت –16104 of ministers’ council that has been approved to guide the executive organization and remove there differences, won’t prevent the justice administration to examine the claims and remove the differences, which there are between the executive organizations.

Mr. Sarvi, Varamin Justice administration:

According to the majority’s opinion, the conditions inserted in article 2 of the above mentioned law are not in force. Because, firstly, there aren’t such conditions in the added note. Secondly, the cheque law is specific and prior, and the other law is common and posterior. Thirdly, cheque is a kind of trade issue. The legislator hasn’t included the regulations inserted in the article 522 in the document to support the trade conditions of it. Fourthly, the attached note of cheque law’s article 2 has been approved by the Expediency Discretion Council and the other law has been approved by the Assembly According to the Guardian Council’s opinion, the Assembly’s approved regulations can’t abolish the Expediency Discretion Council’s approved regulations.

According to the minority’s opinion, it seems that the regulations inserted in the law civil procedure law are in force about cheque too. Because, firstly, the main subject is to receive the compensation of delay in payment, and there is no difference that the claim is about the cheque’s damage and loss or any other civil claim. Therefore, the relationship between of common and specific isn’t considered between both approved regulations. Secondly, the subject of receiving compensation of delay in payment encounters religious difficulty, and it must be avoided as much as possible. It is better that all legal conditions are considered about it. There is no difference that the document is a cheque or something else. According to the principles, which rule over civil procedure, in doubtful cases, it must be referred to the civil procedure law. Therefore, the conditions of regulations inserted in article 522 about the attached note of cheque law’s article 2 are in force too.

Mr. Farahani, Qhods Judicial Complex:

Since, the article 522 of public and revaluation courts’ procedure law in civil affairs which is posterior to the attached note of cheque law’s article 2, has considered some limitations for issuing the judgement of compensation of delay in payment (limitations like the debtor’s financial ability and the flagrant change of yearly price indicator), but there aren’t these limitations and conditions in the attached note of the cheque law’s article 2, the question means if these conditions must be regarded in the execution of the attached note to article 2 or not. In the case that these conditions have been obtained, can the judgement of paying compensation of delay in payment be issued or not?

The majority’s opinion of Qhods complex’s colleagues according to the majority’s opinion of respectable colleagues, the attached note to article 2 contains some specific regulations which can be executed just about cheque and the claims related to demanding damage and loss. The subject of being common and specific isn’t legally meaning full since article 522 has been approved by the Expediency Discretion and the procedure law has been approved by the Islamic Council Assembly and there isn’t any conflict between the approved regulations of these two centers. Since the approved regulations of the Expediency Discretion Council are prior to the Assembly’s approved regulations, and the Expediency Discretion Council approves the regulations as the second judgements and they must be executed until it is necessary and until the time that they haven’t been cancelled and abolished by the same source, so, the answer to the question is negative.

The minority’s opinion of Qhods complex’s colleagues in the case that demanding the amount of cheque under the title of “loss and damage resulted from the offense” is claimed or presented at the same time of (or after) issuing the criminal conviction judgement, the attached note to the cheque law’s article 2 (which rules over these cases) is executed. But, in the case that the cheque’s criminal subject has been removed and the claim has been presented under the claim of demanding the amount of cheque, it is just a legal claim and the regulations of the civil procedure law rule over it. Therefor, article 522 of public and revolution court’s procedure law in civil affairs (1) must be executed. These individuals refer to the numerous judgements, which have been issued by the public court’s branches about this subject to confirm their opinion.

The majority’s opinion:

According to the article 522 of public and revaluation courts’ procedure law, demanding the compensation of delay in payment contains 6 conditions:

1.                   The debt must be the subject of claim.

2.                   The debt must be of the country’s money.

3.                   The debt must be the subject of demanding.

4.                   The debtor must have financial ability to pay his debt.

5.                   The debtor refuses to pay his debt.

6.                   The change of yearly price indicator (from the due date to the pay date) must be flagrant

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Footnote

1 Article 522 of the public and revolution courts’ procedure law in criminal affairs: “ In the claims whose subjects are debt and it is of the current money of the country, and the creditor demands the fund but the debtor refuses to pay it whereas he has financial ability, in the case of existing a flagrant change of yearly price indicator from the due date to the pay date and after the creditor’s demanding, the court computes the money considering the suitable change of yearly indicator which is determined by the Central Bank of Islamic Republic of Iran, and issues the judgement, unless the parties agree to settle the case in another way.”

Demanding the same compensation (according to the attached note of cheque law)(2) hasn’t been depended on any conditions. So, it seems that the Expediency Discretion Council has necessarily approved it and it must be executed until the mentioned council change or remove it. Therefore the regulations of civil procedure law’s article 522 approved by Islamic Council Assembly can’t be executed.

The minority’s opinion:

The article 522 of the public and revolution courts’ procedure law in civil affaires is posterior to the attached note to the cheque law’s article 2. There isn’t common or specific relationship between these two approved rules, because the centers, which have approved them, are different. Since receiving compensation of delay in payment is doubtful from religious aspect, so, al legal conditions and limitations must be considered. Since, not only the civil procedure law hasn’t compiled any regulations against the attached note but also has determined its conditions, and paying attention to the fact that they have recently been approved, so, the mentioned regulations must be considered in the attached note too. (3)

Footnote

2. The note attached to the article 2 of corrective cheque law: “ The person who has received the cheque, can request the conviction of the person who has given it relative to paying all the compensation and expenses which he has directly borne to receive his debt from the debtor, including both these which are after or before issuing the judgement. In the case that creditor request the compensation of damages and the mentioned expenses after issuing the judgement, he must present his request to the same court that has issued the judgement.”

The inquiring law of the note attached to the cheque law’s article2

Single article:

The phrase “all damages and expenses” mentioned in the attached note of article 2 approved by the Expediency Discretion Council of the Regime in 1988, means that the compensation of delay in payment is based on the inflation rate from the cheque’s date to the time of its reception announced by the Islamic Republic of Iran’s Central Bank. The procedure’s expenses and the lawyer’s fee are based on legal tariffs.

3. The phrase “having financial ability” in the article 522 of public and revolution courts’ procedure law in civil affairs means “not being in insolvency state”. In the case that the debtor’s insolvency has been proved, even if the creditor has demanded the fund, it is not permitted to demand the debtor to pay the compensation, because he doesn’t refuse but can’t pay the money as a result f insolvency. Paying attention to the fact that the claim of insolvency is opposite to the principle, so the debtor must prove his claim.

Mr. Farahani, Qhods judicial complex:

The article 35 of public and revolution courts’ procedure law in criminal affairs had determined that the issued writ of temporary detention continues until the issuance of primary judgement. It means that, contrary to other cases in which

The writ of detention of the accused has been permitted, according to this article, the writ of detention which is issued firstly is obligatory; secondly, term of detention is until the issuance of the judgement, where as the time of mentioned security is until the issuance of the judgement. So, what can he do? Must he be release without security because the term of his detention has been ”until the issuance of the judgement” or he must be kept in person? It seems that the answers to both questions are negative. Therefore, the court must determine the duty. The court does the same in other cases. For example, if the court issued a writ of detention for an accused for one month and after expiring one month, the court hadn’t still issued the judgement, is the accused released without security? Certainly No. The policy is in this way that either the court takes his detention necessary or change it to another suitable writ. It is obvious that, if the court issued the acquittance judgement, the accused is released, if not, the accused is notified about the content of the judgement. There is no alternation. Because the accused’s term of detention has been until the issuance of the judgement. But it takes a time that the issue changes to verdict, then it is typed and notified. Also, the file will remain in the branch until the time of requesting the revision expires. But the condition of the accused must be determined. It is obvious that the term of detention has been until the stage of issuing the judgement and after that, the court has authority to issue the extenuation writ of the detention writ or any other writ. Another point, which should be mentioned, is the judge’s duty is issuing the detention writs for one by one month. The article 37 of the above mentioned law states that “the judge is obliged in all cases…”. By stating this phrase, the legislative means all the cases in which the issuance of detention writ is permitted and arbitrary. It is not advisable to imagine that in one article, the legislator says “The issuance of detention writ is required and its period continues until the issuance of the judgement” and in another article says “the judge is obliged to revise or charge the detention writ after one month of period of grace, with mentioning reasons and document. Therefore, the court must take a decision about the subject.

The commission’s consultative opinion

The majority’s opinion:

According to the explicit words inserted in the article 35 of public and revolution courts’ procedure law in criminal affairs (2) and because the law hasn’t determined any duty for the court, after issuing the judgement, the court doesn’t encounter any duty. The judge’s duty about the extension or change of the writ after passing one month of the accused’s detention is related to the time when the judgement hasn’t been issued yet. Moreover, after issuing the judgement, the principle of the judge’s leisure rules and it prevents him to interfere in the subject. (2)

The minority’s opinion:

The article 35 of the public and revolution courts’ procedure law in criminal affairs states the exception of the cases for which it is required to issue the temporary detention writ and its term and conditions. It doesn’t negotiate the determination of the accused’s duty after issuing the judgement. Therefore, according to article 132 of the same law, the court must determine the accused’s duty especially to the stage of requesting the revision or finality of the judgement. Therefore, the court must take a decision about the subject after issuing the judgement.

1-   The article 35 of the public and revolution court’s procedure law in criminal affairs states:

It is required to issue the temporary detention writ for the following cases according to the article 32 of this law. It has been stated that whenever the existing evidences show the accusation of the accused, the issuance of the detention writ is necessary and it continues until the issuance of primary judgement provided that its term doesn’t exceed the time of the legal determined punishment of the offense.

1st)Deliberate murder, Kidnapping, sprinkling acid, fighting against God and making the earth corrupted by offenses.

2nd) Offenses which their legal punishment is Execution or prison for life.

3rd)The offenses of robbery, swindling, embezzlement, bribery, treachery in security, forgery and using forged documents in the case that the accused must have a record of absolute (final) conviction or 2 records of non-absolute conviction for the reason of committing each one of the mentioned offenses.

4th)The cases in which the release of the accused causes corruption in the society.

5th)All of the offenses which have been determined by specific rules.

The article 37 of the same law states: “all the temporary detention writs must be justified and its reasons and legal documents and the accused’s right of protest must be mentioned in the content of the writ. Also, the judge is obliged to revise the temporary detention writ if it is necessary in all cases after the grace period of one month with mentioning reasons and documents, otherwise he must release the accused by the writ of suitable security.

Mr. Farahani, Qhods judicial complex:

The article 35 of public and revolution courts’ procedure law in criminal affairs had determined that the issued writ of temporary detention continues until the issuance of primary judgement. It means that, contrary to other cases in which

The writ of detention of the accused has been permitted, according to this article, the writ of detention which is issued firstly is obligatory; secondly, term of detention is until the issuance of the judgement, where as the time of mentioned security is until the issuance of the judgement. So, what can he do? Must he be release without security because the term of his detention has been ”until the issuance of the judgement” or he must be kept in person? It seems that the answers to both questions are negative. Therefore, the court must determine the duty. The court does the same in other cases. For example, if the court issued a writ of detention for an accused for one month and after expiring one month, the court hadn’t still issued the judgement, is the accused released without security? Certainly, no. The policy is in this way that either the court takes his detention necessary or change it to another suitable writ. It is obvious that, if the court issued the acquittance judgement, the accused is released, if not, the accused is notified about the content of the judgement. There is no alternation. Because the accused’s term of detention has been until the issuance of the judgement. But it takes a time that the issue changes to verdict, then it is typed and notified. Also, the file will remain in the branch until the time of requesting the revision expires. But the condition of the accused must be determined. It is obvious that the term of detention has been until the stage of issuing the judgement and after that, the court has authority to issue the extenuation writ of the detention writ or any other writ. Another point, which should be mentioned, is the judge’s duty is issuing the detention writs for one by one month. The article 37 of the above mentioned law states that “the judge is obliged in all cases…”. By stating this phrase, the legislative means all the cases in which the issuance of detention writ is permitted and arbitrary. It is not advisable to imagine that in one article, the legislator says “The issuance of detention writ is required and its period continues until the issuance of the judgement” and in another article says “the judge is obliged to revise or charge the detention writ after one month of period of grace, with mentioning reasons and document. Therefore, the court must take a decision about the subject.

The commission’s consultative opinion

The majority’s opinion:

According to the explicit words inserted in the article 35 of public and revolution courts’ procedure law in criminal affairs (2) and because the law hasn’t determined any duty for the court, after issuing the judgement, the court doesn’t encounter any duty. The judge’s duty about the extension or change of the writ after passing one month of the accused’s detention is related to the time when the judgement hasn’t been issued yet. Moreover, after issuing the judgement, the principle of the judge’s leisure rules and it prevents him to interfere in the subject. (2)

The minority’s opinion:

The article 35 of the public and revolution courts’ procedure law in criminal affairs states the exception of the cases for which it is required to issue the temporary detention writ and its term and conditions. It doesn’t negotiate the determination of the accused’s duty after issuing the judgement. Therefore, according to article 132 of the same law, the court must determine the accused’s duty especially to the stage of requesting the revision or finality of the judgement. Therefore, the court must take a decision about the subject after issuing the judgement.

2- The article 35 of the public and revolution court’s procedure law in criminal affairs states:

It is required to issue the temporary detention writ for the following cases according to the article 32 of this law. It has been stated that whenever the existing evidences show the accusation of the accused, the issuance of the detention writ is necessary and it continues until the issuance of primary judgement provided that its term doesn’t exceed the time of the legal determined punishment of the offense.

6th) Deliberate murder, Kidnapping, sprinkling acid, fighting against God and making the earth corrupted by offenses.

7th) Offenses which their legal punishment is Execution or prison for life.

8th) The offenses of robbery, swindling, embezzlement, bribery, treachery in security, forgery and using forged documents in the case that the accused must have a record of absolute (final) conviction or 2 records of non-absolute conviction for the reason of committing each one of the mentioned offenses.

9th)  The cases in which the release of the accused causes corruption in the society.

10th) All of the offenses which have been determined by specific rules.

2. The article 37 of the same law states: “all the temporary detention writs must be justified and its reasons and legal documents and the accused’s right of protest must be mentioned in the content of the writ. Also, the judge is obliged to revise the temporary detention writ if it is necessary in all cases after the grace period of one month with mentioning reasons and documents, otherwise he must release the accused by the writ of suitable security.

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Justice in Islam

(Part 4) – Mr. Abas-Ali Alizadeh

In previous discussions we said that the Islamic jurists have the right of judgement. At present system, the follower can judge too. In this part we cant to talk about the judgement of a judge based on his knowledge.

There has been a discussion about this problem since many years ago. There are for statements in

1. The permission of acting based on absolute knowledge that it is famous within the scholars.

2. Not giving permission (absolutely)

3. The separation between God’s rights and people’s right, as it is permitted in the right of God.

4. Contrary to the third statement, it is permitted in people’s rights but not permitted in God’s rights.

Before starting the discussion, it must be mentioned that the knowledge of Imam (innocent religious leader) is out of the discussion. Because, Imam doesn’t judge based on his knowledge. The affairs of human societies are based on the apparent circles. If Imam acts based on his knowledge, a kind of disorder happens in the system that Imam isn’t content that this affair happens. Imam Khomeyni believes in the first statement. The late Sheykh Toosi in his book ”Khalaf” page 435 (problem 641) says that “permission of judgement must be given to a person who is aware of God’s and people’s rights). The late Ayatollah Khoyee in his book accepts the permission of judgement about God’s and people’s rights. The late writer of “Javaher” believes in the judge’s permission to judge about God’s and people’s right based on his knowledge. Also, the great Islamic jurist, Mirza Mohammad Hassan Ashtiani in his book “Ghaza” accepts the permission of judgement about God’s and people’s right.

Those who accept the judgement permission. State 5 reasons for their beliefs.

 The first reason: Judgement based on the knowledge, is the most excellent stage of judgement. Because, proof (which there is no doubt in its permission) is authentic for the reason that we can reach the reality and truth by it. Since the judge tries to adjudicate and execute justice, so he, who is aware of right and truth, doesn’t need any proof. In other word, the proof brings out some suspicion for the judge. Finally the holy religious legislator has accepted his suspicion and permitted him to act on his knowledge. Whereas, acting based on the knowledge is stronger than acting based on suspicion. Because, the proof many not brings out suspicion too and the judge remains in the state of doubt forever, but it is not so for the knowledge.

The second reason: The second reason is the statement of Imam Sadegh (peace be upon him) that he divides the judges into four groups. One of these three groups deserves to go to paradise. He believes that this group contains judges who judge according to the right and his knowledge.

The third reason: This reason contains whatever has been said about Imam Ali’s judgement. In an Islamic tradition has been stated that: an Arab comes to the holy prophet of Islam (peace be upon him) and demands the price of the camel which he has sold to him. The holy prophet says that you are not debtor and I have paid the whole price. There he suggests that a person judges between them. A person from Ghoreysh (tribe) judges and asks the Arab what his claim is. The Arab says his claim. The judge asks for the prophet’s reply and he rejects the Arab’s claim. The judge asks the prophet to bring a reason. He answers that he doesn’t have any reason. The judge causes the Arab to swear that he hasn’t taken his right. At this time, Imam Ali enters and pays attention to the problem. The he asks the Arab if he confirms the prophet. He answers negatively. Imam Ali kills the Arab by his sword. The prophet asks Imam Ali why he did so. He answers: “We confirm you about God, paradise, hell, God’s inspiration, reward and punishment. How do we accept not to confirm you about the price of an Arab’s camel.” At the end the holy prophet of Islam told the judge, “what Ali did was the God’s judgement not what you id. “This tradition shows that it is obvious that the judge is permitted to act based on the knowledge and consequently he doesn’t need any reason or proof.

The fourth reason: This reason contains the verses which indicate the obligation of judgement based on justice, right, equity and soon.

The fifth reason: The last reason indicates that Imam is obliged to punish an adulterer and wine-drinker without any proof as it is stated in the following tradition.

Hossein-ebn-Khaled says that he has heard from Imam Sadegh that: “Since Imam is trustworthy and he is God’s successor, so, whenever he sees any adulterer or a wine-drinker, he must punish them and whenever he observes a thief, he must enjoin him not to do so and reprimands him.”  The narrator asks why. Imam Sadegh answers that: “If the right belongs to God, Imam is obliged to claim it; if the right belongs to people, Imam must demand it.” This tradition clearly specifies that a judge is permitted to act based on his knowledge and he doesn’t need any proof or reason.

The Islamic jurist, Agha Ziya Eraghi says in his book that the judgement based on the judge’s knowledge is correct when his knowledge is according to reality. But proof is always correct whether it is based on reality or it isn’t. Of course, many Islam jurists don’t accept this statement. Because, if we accept that there is a reason for permission, in this case, there isn’t any difference between knowledge and proof whether it is or isn’t based on reality (like the proof). If we accept that the judge can’t religiously act based on his knowledge, we enter another subject. About this problem, the jurist Mohaghegh Ashtiany in his great book “Ghaza” (pages 50&51) discusses about the subject in detail and presents a problem. He justifies that Imam can’t act based on his knowledge. He says that if Imam acts according to his knowledge, it causes disorder in the society’s system. Because, it removes the interests that God has determined for the world to control people’s affairs and conditions. (Because the holy innocent Imam is aware of all the details of interests.) What can we say in reply? Firstly, our discussion is related to Islamic jurist not to the innocent Imam. The jurist is appointed to judge.

Secondly, the late Mohaghegh Eraghi has given an answer to this problem. He says: “We don’t accept that Imam knows every thing about people’s speech and actions, but also they know if they wont to know.” Thirdly, if we accept that Imam has immediate science, we haven’t seen any disorder in the system during all the periods, which they have ruled or judged.

I (as the writer of this passage) think that it is suitable and useful to mention the following case to the present judges. About 4 years ago, I worked in Mashhad City. The great leader, Ayatollah Khomeneyee came to Mashed and one day he visited the scholars and the clergy. I took the opportunity and asked him: “In your opinion, can a judge act based on his science (knowledge) about God’s and people’s rights”.

The great teachers of Mashhad’s religious school and the great jurists discussed with each other. At the end, the leader answered that: “Yes, the judge can act based on hi knowledge. “Then I asked his majesty: “What is your opinion about the judges who are appointed to judge?”

(I knew that the judges must act according to law in a governmental system.) He answered: “If we accept that a judge can act according to his science, them is no difference between a judge and an Islamic jurist any more.” 

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Removing the judgmentAnd shortening the judgment process

By: Gholam-Ale Sedghi

By obtaining God’s help, and paying attention to the great mission which the judiciary power undertakes according to the constitution law of Islamic Republic of Iran, confirmations of the great leader and the chief of the judiciary power based on removing the judgment and shortening the judgment process, and considering the studies acquired experiences related to the above subject, I present my suggestions in two separate chapters. (At the beginning of each chapter, there is a short introduction.)

Introduction 1- The concept of judgment removing doesn’t mean the negation of the principle which denotes That justice administration is a public and formal source for complaining of an injustice. But it means that people are obliged to refer to another source which is faster, cheaper, easier (to access) and consequently acts more justly, before their referring to the justice administration, Then, if that source wasn’t succeed to settle the case, they can refer to the justice administration as a result of necessity. From this aspect, judgment removing is not absolute but arbitrary.

For example, about the conflicts which have contract basis, it is suggested (considering note 32, part 5 of the budget law of the year 2001) that the state Registry of Deeds and Real Estate Organization is charged to issue and extend the work license of the counselors of real estate and automobiles. The mentioned organization must supervise these counselors. In advanced forms of these transactions, a part has been attached that in the case of any conflict in the comment and execution of the contract, the parties must refer to the arbitrator. By this way, the law’s article 189 of the third economic, social and cultural development program is executed and also, the number of cases related to the subjects of real estate and automobile (including cooperation, selling and buying, renting) is reduced. If any person referred initially to the justice administration in spite of this condition, the court will issue the writ of not listening to him. (This is the belief of the majority of judges in Tehran justice administration’s judicial and legal (civil) affairs commission.)

Judgment removing has another meaning too. The rules must be approved in accordance with the conditions of the world and our present society. From this aspect, many of claims and complaint, which don’t have a judicial complicated nature, or basically are administrative or non-judicial, can be referred to the non-judicial related sources.

After providing judicial drafts, it must be tired to provide some drafts traduce the number of cases, which are referred to the trials. For example, every year, thousands of criminal and civil files (related to the education of rentals, changing the name and age, guardianship and surety ship, health infractions, guidance and driving, life environment, work…) enters the trials, whereas, if it is examined exactly, we understand that such files either are basically administrative and non-judicial, or are semi-judicial and aren’t very complicated. We can provide some suitable judicial drafts to refer such claims to their related sources like the related trade unions, Statistics and Registration Administration, and Health Organizations. After taking the decision by the non-judicial institution, if the claimant has any protest, he can refer to the justice administration, so that the judiciary power executes its duty.

The Constitution law’s principle 159 states that the justice administration is a public source for complaining. This statement doesn’t mean that each claim must initially be referred to judicial trails. It is here that we must criticize the precedent vote issued by the Supreme Court’s Full Bench especially in recent years, according to the appearance of the Constitution Law’s principle 159. The precedent issue states that wherever there is a difference between the trails and commissions or between the justice administration’s trails and administrative institutions such as Registry of Personal Status Administration, the trials’ competency is prior.

By this way, this issue has made the justice administration’s loads heavier, and destroyed the legislator’s intention about the specific and immediate examination.

The first chapter – Judgment Removing

Section 1-  The development of arbitration institution

One of the best ways for the settlement of conflicts, during the history and within all religions, is arbitration. Today this way has been welcomed by the world more than any other time: to the extent that we can rarely find a contract related to commercial trade and transactions (interior and international) in which it hasn’t been anticipated to settle the conflicts by arbitration. The advantages of arbitration are as follow:

1. Rapidity in the settlement of conflicts

2.Facility and easiness for the parties for the reason that they don’t want to obey the complicated procedures of judgment

3.Its cheapness for the reason that today the judgment expenses (including stamp’s cancellation, first petition, revision request, lawyer’s fee and so on) are very expressive and intolerable for most people.

4.The development of judgment causes the capital to circulate. Because, as a result of the judgment duration, many projects have waited to be settled and this has caused the capital to be standstill.

5. Arbitration causes the parties’ secrets to be kept. Because traders and merchants doesn’t usually desire to make their internal secrets apparent. This problem is solved by arbitration.

6.The conflict’s settlement by arbitration brings out more reliance and confidence. Because the arbitrator is chosen by both parties whereas the judge isn’t.

Kinds of arbitration:

A- The Governmental Obligatory Arbitration:

This kind of arbitration is usually anticipated in law for the conflicts of governmental organizations with each other. Our discussion is more related to the arbitration which results in judgment removing. Here, we can mention the note 12 of the budget law of the years 2000 & 2001.

The above mentioned note states that:

a) It is permitted that a commission is formed under the supervision of “the management and planning organization” and by the presence of authorized representatives of Housing and Urban Development Minister, Economy and Finance Affairs Minister and the authorized representative of the ministers of the organizations that are independent of the other party, This commission is going to provide some facilities in order to quicken the settlement of conflicts related to buildings, the ministry’s lands and organizations, governmental institutions and companies and the companies whose their names must be mentioned if they are included in the law, public non-governmental institutions and organization, martial and disciplinary forces which have possessed a place based on the specific needs and necessities of the beginnings of Islamic Republic and imposed war, without or with the permission of the previous owner, and now the previous owner needs his property.

The execution of the above mentioned issue about the buildings which have been possessed by the institutions or armed forces which are under the supervision of the great leader, must be done by consideration his majesty’s permission.

b) The above mentioned commission’s issued judgments are in force for the related executive organizations. In the case of not executing the mentioned issues in determined extension, for any reason, by the related executive organizations, “The management and planning organization” is obliged to deduct the equal value of the possessed property’s price from the of the mentioned organization and adds it to the budget of the beneficiary executive organization (with out regarding the limitation of replacement in the current budget), according to the mentioned commission’s suggestion.

According to the explicitness of section (a), firstly, the commission was formed in order to quicken the settlement of conflicts related to lands and real estate, which are the subjects of conflicts between public and governmental institutions. Secondly, the commission’s decision is decisive and in force for the related organization. Thirdly, a strong executive security has been anticipated for it. Fourthly, the given permission is just related to the formation of the mentioned commission not to reference of the related organizations. Therefore, after the formation of the commission, it is required that the related organizations refer to it. Fifthly, if we suppose that the organizations’ references are arbitrary, the legislator’s intention is breached. (i.e. the conflicts of the government’s inter-organization aren’t settled quickly.) Consequently, the duration of conflicts causes the governmental organization to become inadequate. Yet, unfortunately, the applied judicial policy has been against the legislator’s intention and finally caused the increase of the number of files, which enter the justice administration. As an example we can refer to one the precedent issue of the Supreme Court’s Full Bench:

The issue No. 1367/10/20-516 knows the Constitution Low’s principal 159 of the Islamic Republic of Iran as the formal source for complaints. It is specified in the principle 137 that each minister is responsible for his duties (against the assemble) and others’ duties in the affairs which have been approved by the council of ministers. Therefore, the council of ministers’ issue No.1366/5/8-235/ت/16-104, which has been approved in order to guide the executive organizations and to settle the conflicts: doesn’t prevent the justice administration to examine the claim and conflicts of the executive organizations.

Another example of obligatory arbitration, which can be mentioned, is the article 17 of stock exchange law.

a- The councils of conflict settlement – (the subject of article 189 of the third social and economic development program’s law approved in the year 2000) .

In the article 189 of the mentioned law, it has been determined that: ”in order to decrease people’s cooperation, the settlement of local conflicts and the affairs which don’t have judicial nature or their judicial natures are less complicated is. Transferred to the councils of conflict settlement. The duty and authority limit of these councils, the composition of the councils and the conditions of choosing their members are based on the by-law which is suggested by the justice administration minister and approved by the council of ministers and confirmed by the chief of the judiciary power.

The post record of arbitration backs to the law of arbitration council approved in 1966. But, it seems that in the compilation of the by-law, we must pay attention both to the old law of arbitration council and (considering the charges, which have happened after the Islamic Republic of Iran) to the law of Islamic councils of cities and villages. It seems that we can use from the members of Islamic councils in the by-law, because they are directly chosen by people (so they can help to settle the conflicts). More over, the election of members for the conflict settlement councils is expensive and time-consuming. But, it is necessary to mention the following points for the council’s success:

1. Before confirming the issue by the advisor justice, the parties are notified about the issue, so that they express their opinions to be regarded by the judge.

2. The members of the arbitration council must be obliged to consult the persons who are famous for their faith and the local experts or the experts of the related trade union or virtue.

3. In each case, before announcing the issue by the arbitrators, the parties solve their problem by peace and agreement. I there is agreed to renew the session, they can repeat it for one time.

B-   Optional Arbitration:

Sometimes, the parties refer satisfactorily to arbitration after or before happening a conflict. This kind of arbitration can happen about natural or legal individuals.

  The most important point in optional arbitration is to construct a field for arbitration. In has been determined in the note 32: part 5 of the budge law of the year 2001 that: “The Stake Registry of Deeds and Real State Organization is obliged to examine the occupational request of the real estate and automobile advisor, and control his situation and then issue or extend his work license. According to the place’s conditions and situations, the sum form 200000 to 1000000 Rials must be received and deposited to the account of treasury general.

Giving work license is required a kind of supervision.

The advanced forms and samples, which are used for cooperation, buying and selling, renting and so on, are a way of supervision. So, it is better to add a clause in the contract samples, so that in the case of happening a conflict in the execution of the contract, the parties refer to arbitration. The result of this suggestion causes that every year, thousands of files are initially referred to arbitration. After issuing the arbitrator’s vote, if there is any objection, they can refer to the justice administration. According to statistics, more than 90% of the conflicts have been settled by arbitration and less than 10% have been referred to he justice administration. Now, them is a question in this field: In the case that the parties accept in the contract to refer to arbitration if any conflict happens, can they refer initially to the trials without referring to arbitration or not?

It seems that paying attention to civil law’s article10, the arbitration contract is in force for both parties, So if one of the parties refers to trials before the conciliation of the contract, it means that of one of contract’s sections has been disregarded. Therefore, it is not possible to examine the case in the trials without referring to arbitrator. Moreover, the articles 455 and 463 of the civil procedure law states the same meaning and oblige the court not to hear the claim. “This idea was confirmed by the judges of Tehran justice administration’s judicial and civil commission.” About legal individuals (companies), at the time of regulating the company’s constitution, one of the constitution’s articles can be attributed to the subject of conflict settlement, so that in the case of happening a conflict, the parties can refer to arbitration.

About the commercial conflict settlement (including internal or external), in the constitution law of Iran’s chamber of commerce approved in the year 2001 by the Islamic Council Assembly, the arbitration institution has been anticipated. In the article 10 of the mention law, the regulations of arbitration procedure have been determined as follow:

a- In the international commercial conflicts, the parties must act to the law of international commercial arbitration approved in 1997.

b- In the internal commercial conflicts, the parties must act according to the regulations of public and revolution courts’ procedure law (arbitration section) approved in the year 2000.

c- Therefore, regarding the regulations of the mentioned law, the internal and external conflicts of all merchants can be settled by arbitration.

Section 2- Providing judicial drafts for judgment removing

As it was explained in the introduction, one of the positions of judgment removing subject is to provide some judicial drafts. The drafts are divided to two sections; penal and civil:

A- Penal Section – In this section by providing judicial drafts we can transfer many penal problems to their main position and exempt the justice administration form the primary examination. For example the cases of health infractions, guidance and driving, life environment, … can be examined in the related organization at first and if there is any objection, they can be referred to the trials.

One of the interesting examples of law is the note 7, par (v) of the budget law of the year 2001, which is about the criminal judgment removing:

“In order to prevent the foreign unauthorized work force to work in the country’s work market, the Labour and Social Affairs Ministry is obliged to punish the employers who employ the foreigners who don’t have work permit. Such employers must pay fine equal to ten items of the least daily fee of the same worker. If he repeated the infraction, the fine will be doubled. … If there is any objection, the employers can refer to the trials. …”

B-Civil Section – Providing judicial drafts for civil section, is more important. Because, every year, thousands of petition about reducing the rentals, changing the name or age, issuing the certificate, … are presented in the trails that if they are examined carefully, we understand that they aren’t judicial at all and there isn’t any need to hold a court and waste the trials’ time. In this case, we can correct the related regulations and refer these cases to the related trade union or related administrations. If there is any objection after taking the decision by these authorities, the parties can refer to the justice administration.

Note – At present situation, we can apply the suitable executive by-law (which is the subject of article 189 of the law of social and economic development program) to the extent that it isn’t against the rules in order to reach to the results of parts A and B.

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The second chapter – Shortening judgment process

Introduction 2:

To talk about the importance of shortening the judgment process, it is enough to mention of the great leader’s judgment about the appointment of Ayatollah Sharoud: as the chief of the judiciary power dated in 1999. He explicitly stated in his judgment that: “Shortening the judgment process…, using new technology to examine the cases are of first priorities.”

To actualize this important subject, not only we must increase the number of trials, but also, it is necessary to increase the trials’ quality. Judgment is both science and art. So, just an artistic scientist can present his art in the form of an exact and fast judgment. It is enough that a person refers to a trial just one time during his life and encounters and inadequate judge. This dealing affects him (and even the next generations) badly. Most of the time the circular letter of the judiciary power’s chief will prevent from lengthening the judgment. There are some cases, which need notice. They will be mentioned in this passage later. After mentioning the introduction, the main subject is divided to two sections:

Section 1- The revival of the abandoned laws (judgment without ceremonies):

As the respectable Guardian Council mentioned, a law is in force until it isn’t announced as a law, which is against the religion. One of the ways of shortening the judgment process, is the revival of old abandoned laws:

A- The legal draft of the condition of demanding debts approved in 1960.

Single Article – In cases that the debt document is common, the creditor can demand the debtor to pay the debt by declaration. If the debtor doesn’t pay the debt during 10 days of the real notification of the declaration or doesn’t deposit if in the justice administration’s box or denies the debt or doesn’t answer any way (during 10 days), the court will oblige him to pay the debt if the case of the creditor’s request. The issued judgment is in fore if there isn’t any objection. The debtor protest against the issued judgment, he can present a petition of protest to he court during 10 days of the notification. Then, his objection will be examined according to the legal regulations. The new judgment will be objectionable to the extent of regulation.

If the debtor denies the debt after announcing the declaration, the creditor can present a petition to the competent court according to the regulations. In this case, if it is proved that the debtor has deliberately presented the protest petition to the court, the court will oblige him to pay both the main debt and a fine equal to 10% of the object of claim. The fine will be received after the finality of the judgment. The justice Ministry undertakes the execution of this legal draft. There are some points that should be mentioned about the above law. Firstly, the documents of the petition are common. Secondly, the notification must be real. Thirdly, the debtor must pay a fine if his claim wasn’t proved. This fire is according to religious rules and the Guardian Council has already announced such an opinion.

B- The corrective law of some of the articles of the civil procedure law and attaching some articles to it approved in 1998.

C- The execution of this law (whose subject is the demanding of cash money and the documents of the claim are common can shorten the judgment process.)

Article 6- In the claims whose subject is demanding cash money and is documented to common documents, the court can examine the case based on the plaintiff’s request and without giving notice to the defendant, regarding the plaintiff’s documents. The court can obtain enough security to compensate the probable loss, and issue the judgment by default. These judgments obey the regulation: of articles 173, 164 and 175 of civil procedure law, from the aspect of their results.

Article 7- In the claims which are related to documents included in the trade law’s article 292, the mentioned security in the article 6, won’t be obtained. By the execution of the mentioned articles and other articles of this law, most of the civil files relate to demanding cash fine, are examined in the shortest time. The only point which must be mentioned is whether the examination of the case in office time and without inviting the defendant, justified or not at present judgment?

To answer this question, it must be said that not only this law isn’t against the religious rules but also the regulations, which were approved after the Islamic Revolutions, confirm this law. There is a similar law related to the law of the relations between lessor and lessee approved in 1997 that has been confirmed by the Guardian Council, and it is applicable in all judicial trials of the country.

D- The law of family support approved in 1967.

Paying attention to the importance of family problems, and the necessity of taking immediate decision about family claims, the legislator has determined suitable regulations to quicken the examination, such as article 18 of the mentioned law.

Article 18- “The couples or any one of them can request the court to examine immediately the problem of the children’s fostering present situation or the expenses of their protection before entering the nature of the claim. Whenever, the court receives such a request, it is obliged to examine the case. Issuing the temporary writ relative to the fostering of the children or their expenses, is decisive, and it is immediately executed.”

As it is understood from the content of the law, since the problem of children fostering is urgent, the court is obliged to issue temporary writ before issuing the judgment. Perhaps, by issuing the writ, the problem of the case is solved and families are prevented from wandering state.

It is suggested applying the same way of examination for the claims related to blood money that the murderer is given 1 to 3 years of extension, but the injured person remains without any support.

Section 2- Controlling the petition from the time they are presented to the court and their required legal operations to the first session of examination:

A- Removing the petition’s deficiency by the court office’s administrator and reviewing the petition by the chief of the court’s branch:

Article 54 of civil procedure law has determined in the mentioned cases of the previous article that the court office’s administrator must inform the plaintiff of the petition’s deficiency (in writing) during 2 days of receiving the petition and give him an extension to remove the deficiency during 10 days of the date of notification. If the plaintiff doesn’t remove the deficiency during the determined extension, the petition is rejected by the writ, which is issued by the office administrator. This writ is notified to the plaintiff and he can complain to the same court during 10 days of the date of notification. The court’s judgment is decisive in this regard. The correct and exact execution of this article by the office administrator and its super vision by the chief of the branch are one of the most effective way for shortening the judgment process. Most of the time, the court determines the time of examination (without removing the deficiency) and during the procedure of judgment, the judge becomes aware of the deficiency. So the case is returned to the court office so that the operation which must have done several month ago, is done. Of course the office administrator duty doesn’t negate the supervision duty of the branch’s chief. The latter must observe the file exactly and them determine the time of judgment.

B- Obtaining the court’s competency:

The court is obliged to obtain the court’s competency to examine the file, after completing the petition and before determining the time of examination, by exact study of the petition. If the court doesn’t have competency to examine the file, it must avoid determining the time of examination and inviting the parties to the court. In most cases, it has been observed that after examining the file for months, finally the court recognizes that it doesn’t have competency to examine the file and refers the case to another competent authority. This carelessness causes the problem of judgment duration.

But there are two points, which should be mentioned:

The first point – In most cases, the writ of lack of natural competency is issued that it seems to be against the law. In recent years, some courts haven’t recognized the court’s competency related to the examination of claims about the division of property including immovable property. In the execution of the law of the common property’s separation, the file is sent to the registration unit that in most cases, the property is recognized as inseparable and the writ of lack of separation is issued. The plaintiff must refer to court with a new claim. It seems that the courts have natural competency to examine the claims of property’s division of property, some rules must be considered. Therefore, issuing such writs is illegal and causes the judgment procedure to be lengthened. 

The second point – According to the precedent issue

The issue of the Supreme Court’s Fall Bench No. 91369 (whose subject is related to the demanding of bill of exchange’s money) has mentioned that three courts have competency to examine the claims related to moveable property, and they are the results of contracts. (The courts of the place of contract, the place of execution, the place of the defendant) but, unfortunately, it has been observed that hundreds of files are sent to the court of the defendant place by issuing the writ of the lack of competency, whereas the plaintiff has presented the claim to the court of his own residence place (which is the place of contract or execution). It is better that the respectable chief of the judiciary power issues a circular letter to prevent form the lengthening of the judgment so that a precedent issue is formed.

C- Obtaining the ability of a claim to be heard (before determining the time of judgment examination):

Another way of shortening the judgment process is to issue the writ of not listening to the claim if it can’t be heard. The mentioned writ must be issued before determining the time of examination and inviting the parties to the court not after that. Therefore, the plaintiff’s duty is determined sooner.

An objection to this idea is that this operation spoils the plaintiff’s right. Because, he may change the petition in the first session of judgment so that it becomes able to be heard. To answer this problem, it must be said that:

Firstly, the article 2 of civil procedure law has stated that: “No court can examine a claim unless the beneficiary individual(s) or his (their) attorney or deputy or legal representative request the court to examine the case “according to the law”. Therefore, if a claim can’t be heard, it must be rejected.

Secondly, the objection of spoiling the plaintiff’s right is acceptable when there has been created a right. Whereas no right has been created in this subject.

Thirdly, determining the time of judgment for a claim, which can’t be heard, means a kind of acceptance of the claim, which can be heard. Therefore, if such writ is issued after the formation of examination session, it is understood that there is a kind of conflict between the decisions.

D- It is possible to do the following investigations at the same time that the time of judgment is determined:

1. Inquiring the office of lands and deeds registry about the conditions of lands’ ownership.

2. Inquiring about the conditions of automobile’s ownership

3. Demanding the criminal or civil file and the files related to the execution of registration and registered companies

4. Mentioning to the plaintiff to bring his witnesses.

5. Announcing the time of judgment to the plaintiff by presence notice.

E. Taking immediate decision (which are requested) such as:

1. The temporary order (immediate judgment)

2. Providing the object of claim

3. Stopping the executive operation

4. Registering and sealing the property

Taking and doing the decision immediately and on time cause the parties to agree with each other and the file to finish in most cases. But actually, some branches don’t do these affairs on time and this causes the judgment to be lengthened.

F-The court’s office administration’s supervision over the correctness of notice and returned warnings (before they are attached to the file):

One of the important duties of the office administrator is to control the correctness of the announcing the notice when the judicial papers are returned from the notice unit.

G-Trying to bring out peace and agreement (regulating corrective report):

Paying attention to the abundant and positive effects of peace and agreement between the parties and regarding people’s reliance to the court’s judge and existing religious and moral fields in our society, it seems that the judge’s try to finish the files especially civil files by peace and agreement and regulate corrective report, is very effective in shortening the judgment process. The advantages of regulating the corrective reports are as follow:

1. Parties’ satisfaction about the fast termination of the file

2. The deep settlement of struggle and conflicts

3. Preventing from next conflicts

4. Shortening the judgment process and preventing form the stage of revision and conclusive request

5. Facility in executing the judgment

6. Preventing from intermediary in the justice administration (which itself is a kind of prevention form other offenses)

H- Obtaining the parties agreement to refer their affairs to arbitration:

In the case of lack of success by peace and agreement, the examination of the cases especially whose subjects are technical and specialized, by arbitration is very effective. It is advisable that the judiciary power develops the private arbitration institution and renews the abandoned regulations of arbitration. At the end, if all of these above-mentioned stages didn’t succeed, the ordinary judgment must continue.

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The report of the Austria justice minister’s Meeting with Tehran justice administration’s chief

The cooperation of Iran and Austria in judicial fields

Some time ago, Dr. Deter Bumdurfer, Austria justice minister and accompanied board came to Tehran and talked to Iran judicial authorities. In this trip, he and Professor Rishbergur, Vienna Law College’s Dean, Austria’sambassador in Tehran and some other authorities of Austria justice administration visit and talked to Hojatol-Eslam Alizadeh and some other judicial authorities of our country in the place of Tehran justice administration they transferred their ideas with each other and confirmed to develop their legal and judicial cooperation. At the beginning of the session, Mr. Alizadeh welcomed the invitees and talked about judicial and social rights and international problems.

He added: Tehran justice administration contains ¼ of the judges and the judiciary power’s staff. In addition to the international problem, which are examined in Tehran, this administration examines ¼ of the whole files of the country. The chief of Tehran justice administration minded that the new judicial system was executed in the country from 8 year ago and the public and revolution courts rule over the country. He said that at the time of his appointment to this position, the time of examination was long and the situation of trials wasn’t desirable. Today, this time has decreased to 4 month and it is a great success for the judiciary power.

He continued that: From the second half of the year 1999, all the trials became specialized and now, all the public and revolution courts obey the same procedure and are obliged to obey it.

He announced the separation of criminal, civil, family, children and periodicals trials from each other. He added that according to the Constitution Law and the procedure Law, all the trials must be held in open session unless in special cases. Most courts’ judgement can be revised.

The person who is in charge of the legal commission of fighting against narcotic substances referred to the serious crash of Islamic Republic with these substances and reminded the cooperation of Iran and UN in this field. He said that Khorasan province has 720 Kilometers common border with Afghanistan. This country produces 4000 tons of narcotic substances that 3000 tons of them are transited from Iran. That’s why most of the people who live in this are have been addicted to these substances.

Mr. Alizadeh referred to the period of 20 years of his judicial presence in Kerman and Khorasan provinces and added: “We fight against smugglers seriously and strongly. Also, we have tolerated many damages in this field, for the reason of protecting the Iranian country men’s health and more important protecting the human society’s health”:

The chief to Tehran justice administration referred to the terrorism problem in Iran and added: “We are strongly disagree with terrorism in any form and any place from the aspects of out current rules and our religious ideas. Iran is one of the victims of terrorism in the worlds and fight against it. Whereas others accused us of being the supporter of terrorism and it is the biggest cruelty (oppression) against Islamic Republic of Iran. Mr. Alizadeh expressed hope that Austria justice minister pays attention to Iran’s fights in the above mentioned fields.”

He refereed to the serious efforts of the judiciary power in the field of training and said: “Training during the service is regularly executed for judges every month and high-rank judges of the universities cooperate us in this field. It is tried to increase the judges’ knowledge.” About training the judges in abroad, he said:” A committee has been formed under the supervision of Ayatollah Shahroodi, which follows the scientific interchanges and the world problems in Iran and foreign countries. This affair is very important and useful”. Mr. Alizadeh referred to the internet site which has been started to work. He asked Austria justice minister to help Tehran justice administration for the execution of justice and administer of people’s right. Dr.Bumdurfur, Austria justice minister said:” The main concentration of Iran’s judicial files in Tehran justice administration is very difficult, on the other hand you have shortened the time of examination. We also follow this important matter and agree with you. Shortening the time of examination, reduces the expenses which we involve in it too in Austria.”

He added: “Of course, some want to lengthen the time of examination. We also desire to respect and regard human and people’s rights in our country. So we try to quicken the examination and don’t waste the time.” He confirmed: “According to Austria’s Constitution Law and regarding international and human rights, we desire to set up justice in our country.” He said that in Austria, there are specific courts too, which examine the problems of family, infant, and young adults. Then he asked some questions about the trial age of young adults in Iran, the conflicts of civil and criminal laws, the periodicals permission to publish the courts’ adventure and son on. Our reporter says that Austria justice minister referred to Iran’s positive vole in fighting against narcotic substances in the next part of his speech and said: “I confirm you that you pay attention to human problem in the world and in fighting against narcotic substances, you don’t pay attention just to your interest. “He added: “We are sorry about the persons who have been killed for fighting against these substances. This subject must be reflected in the world and we will cooperate with you. You have many experiences in this field and we try to force European Union and the UN to cooperate with you too.” About fighting against terrorism he said: “We confirm your opinion in this field. We encounter this subject too, and we are ready to cooperate you in any form and to the international level. In Austria, the terrorism problem: are related to the Interior Ministry. We are ready to cooperate with Iran’s Interior Ministry if it is necessary.”

The subject of training of judges and judicial staff during their services was interesting for Austria Justice Minister. He said: “We have such a system in Austria too.” He announced the readiness of his country to present some information in this field. About using computer in judicial system, he said that Austria contains the world’s highest technology and added that they are ready to improve the quality of this system in Iran. He emphasized that this system has caused the courts to do their work more exactly and save time and money. An another advantage of using this system, he added, is the determination of ownership and its related problems. He believes that Austria is more developed than any other country in this field. For example, the information of all the companies and their owners, their financial and economic situations has been collected in the informative system of this country.

Then, Mr. Alizadeh answered the Austria justice minister’s questions and said: ”Young adults are included in penal convictions from the age of 15 years old. If they are younger, they are interpreted as child and they can’t be punished. But they are sent to the correctional institutions to be corrected and trained.” He added: “Our child courts work independently and we are providing some rules by the cooperation of UNICEF. Such courts obey the specific judgement procedure.

Tehran justice administration’s chief said that Iran has the first position within Islamic countries from the aspect of family courts. It is one of the Islamic Republic’s glories that it can examine Islamic right: regarding the laws. Mr. Alizadeh expressed interest that Dr. Bumdorfur and his accompanied board visit one of our trials and added: “If you visit these trials, you can that the public and revolution courts completely consider the criminal procedure. Our judges and authorities pay attention to the laws and consider them. We try to administer and execute justice in the society and the law doesn’t differentiate between the weak and the strong form this aspect.”

Tehran justice administration’s chief said about the trials of periodicals in Iran: “according to the Islamic Republic’s laws, the periodicals are free to state different subjects unless the cases which have been limited by law. In this case, the court is held in open session and with the presence of jury board.”

Dr. Bumdorfur said: “We came to Iran in order to collect and communicate experiences and become familiar with your system not to criticize it. “He added: “The age of trial in Iran is very interesting for me. We can convict children in Austria by the age of 14. We have heard that the age of marriage is law in Iran. What is the relation between offense and marriage in law age?” He added: “about the periodicals, we also have specified law and periodicals can act within the frame of law and can’t interfere in everything.”

Mr. Alizadeh said: “about the marriage of a girt, it is required for a girl to have her father’s permission, whether she is 14 or 20 years old. If the girl isn’t ready to marry, his father doesn’t give her permission to do it. If the girl doesn’t have any guardian or he doesn’t give her the permission to marry (in spite of her readiness and interest), the court examine the case and if it recognized the girl’s interest, it will give her the permission of marriage. But it is not necessary for the boys to have their fathers’ permissions.”

Dr. Bumdorfur asked: “Let’s talk about women’s right. It is famous in the world that in Iran, the women’s right is not considered. It is said that they inherit property equal to half of the men’s inheritance.”

Mr. Alizadeh said: “I have religious education and I was the chief of revision court, 19 years ago. So I have complete information in this field. In Islamic Republic, man gives marriage proposal to woman, and it is an advantage. The second advantage is that the man must pay marriage potion to the woman as just as she became the man’s wife. The next subject is that when the marriage contract was done, the man undertakes all the common’s expenses. The woman can request wage event for the housework, If the woman is rich and the man is poor, the man doesn’t have any right to spend the woman’s money and salary in their common life, unless the woman herself wants to spend her money. Now, I ask you, regarding these advantages given to women, if they inherit the same amount as men, please refer to your conscience, will men be oppressed or women?”

According to the report of Ghezavat’s reporter, at the end of this friendly session, the parties expressed their satisfaction from the negotiation and emphasized to sign a applied memorandum of understanding in the mentioned fields. 

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The executive program of the year 2002

All of you must anticipate the program and new operations of the next year. It is required to try for 24 hours a day and show innovation and creativeness if we desire to decrease people’s suffering relative to the judicial system and move toward the required corrections.

The chief of the judiciary power

If we want to do logical and advisable operations, we must plan some programs. It is supposed that the process of programming must bring out such an order in the way of thinking that we think, “presenting a program is good” by itself. But, if programming contains advisable and logical nature, it will become a way by which we can solve the problems using vision and understanding power. Programming is good because it is systematic not accidental, useful and effective not useless. It is coordinated and balanced not disordered and disturbed. It has firmness and above all it is a logical work.

Being systematic means that the manager specifies the way of accessing to information or using the ways, which result in finding related factors of decision taking process. Being effective means that we can provide the purpose by spending minimum expenses and effort. Being coordinated means that each sector must do its duty and support and confirm other parts. They must not be the opposite of each other and breach each other’s purposes and work.

All of the people who administrate the affairs, must follow the same purpose and their operations must suitable and on time. They must coordinate their steps with each other. Finally, programming will take us toward systematic, effective, coordinated and firm management.

Note:

It must be remind that it is a true (right) expectation from Tehran justice administration as the judicial source of the country to bring out change, innovation and creativeness in all fields. Whereas, the regulating and planning of this program have been done on two bases: first, the indicators which the respectable chief of the judiciary power has emphasized by notified circular letters, has executive priority in the year 2002; secondly, the kind of execution of the program has been determined based on the existing ability and good applying of the possibilities.

The main aims of the executive program of the year 2002 are as follow:

1.Reducing existing trials and the execution of the judgement

2.Creating readiness in order to welcome the change of the judicial system

3.Recognizing the problems related to the affairs of fighting against economic corruption.

1.Reducing existing trials and the execution of the judgement:

If we look briefly at the statistics of recent years, we can understand why the above title has been determined as one of the three purposes of the executive program of the year 2002. Regarding the above statistics, every just person confirms if there wasn’t the plan of “reducing existing trials” which has been executed since the second half of the year 1999, at present, Tehran justice administration encountered a large amount of files. Of course, there isn’t any claim that this plan is complete (without any deficiency), the lack of possibility to make all the branches active as a result of judge shortage causes the judges and the judicial staff to tolerate this load.

On overage, the number of interred files increases about 13% each month.

On the other hand, we are in the threshold of the new change in judicial system and the revival of prosecutor’s office. The execution experience of public and revolution courts in 1994 encourages us to prevent from increasing the existing trials if we want to execute the new system well.

2. Creating readiness in order to welcome the change of the judicial system

Regarding the statements of the respectable chief of the judiciary power, the revival of the prosecutor’s office isn’t against the religious rules. But also 2 duties have been determined for the judicial system in religious sources: prosecutor’s office and administer of justice (which is the judge’s occupation).

The lack of the prosecutor has caused many damages to the judicial system. It has lowered the social rank of the judge in the society and reduced the speed of judgement in the trials. Judgement about the plan of the prosecutor’s office revival (which is effective or not) depends on the good execution of it generally in the whole country and specially in Tehran which is more observable by the authorities. It needs the complete cooperation of the judiciary power with Tehran justice administration. The justice administration has determined the success of this affair as one of its purposes in the year 2002.

3. Recognizing the problems related to the affairs of fighting against economic corruption:

The order of the great revolution leader about fighting against economical corruption in the year 2000 includes the whole country, but it is obvious that the important cases are happen in Tehran. The leader has emphasized again on this problem in his message that: the problem of fighting against corruption is a real and basic element in the correction of the affairs of the country. It is the duty of all and specially the duty of the country’s authorities. Fighting against corruption must be serious, exact, completely just and far from extremism. Therefore, one of the executive program’s purposes of the year 2002 is to try to remove the prohibition of fighting against economical corruption and apply the acquired experiences of the last year. Tehran justice administration, regarding its post experiences about regulating the executive program, approved the following program during 10 sessions of programming council:

A- The section of Training and Researches

The guidance of the respectable chief of the judiciary power: It is necessary to promote the judges’ scientific level in the judicial system of the Islamic Republic regime and compensate their distance form theoretical discussion after graduating, to control the increasing improvement of the judgement procedures, fast change of judicial system, general and basic changes of the applied rules of the courts, to obtain required specialties by judges in order to quicken the execution of the affair and to coordinate with other governmental administrations, to get information from new judicial notions and other judges’ opinions.

Training activities:

1.A- The continuation of the period, 2- The judges’ public training (each period lasts for 120 hours)

3.A – The celebration of the period, 4-A specialty for interrogators and prosecutors

5.A- The celebration of specialized legal and trade periods, 6- civil law, 7- civil judgement procedure

Computer offenses, forgery, swindling, family right, non-litigious matters, international right

8-A- The continuation of negotiation with the universities and high training centers in order to promote the judges’ educational level

9-A- The celebration of the period of public language training

10-A- The continuation of the period of civil-penal specialized language.

11-A- The celebration of common specialized scientific conferences with law universities and other law associations

12-A- The celebration of Quran conference in the holy month of Ramazan

13-A- The celebration of 10 judicial scientific meetings with the presence of the representatives of the judicial units and the Bar Association

14-A- The supreme court

15-A- The law college

16-A- The publication of the third volume of the collection of the judges’ judicial opinions

17-A- The publication of the selected opinions of the revised trials

18-A- The publication of the selected approved regulations which are in force in the year 2002

19-A- The publication of Tehran justice administration judges’ selected articles

20-A- improving the quality level of Gezavat magazine

21-A- improving the internet site Tehran justice administration form quality and quantity aspects

22-A- Providing am independent place for training in order to extend the activities of training and researches

23-A- Periodical computer training for the judges and judicial staff

24-A- The complete training of Pishineh program (5 periods)

25-A- The training of specific bailiff (natural resources telecommunication)

26-A- Special training in statistics (10 individuals)

27-A- Occupational training at the beginning of employment (800 individuals)

28-A- On the job training (office administrators-the administrators of the execution of criminal-civil judgements)

29-A- The celebration of justified exam for 1000 contract personnel to determine their situation

30-A- Telecommunication training (40 individuals)

32-A- The training of the petition writers

33-A- The celebration of two large specialized law book fairs

34-A- Completing the judicial unit’s library

B- The judicial and administrative inspection and the reflection of its results

The guidance of the chief of the respectable chief of the judiciary power:

The general chiefs of the province’s justice administrations must visit the judicial units according to an ordered program and supervise the related affairs. They must try by applying the useful opinions and experiences of the authorities and experienced individuals to change the existing situation to a desired one.

Tehran justice administration started judicial and administrative inspection under the supervision of justice administration first deputy in the year of 2001. It will continue this important affair in the year 2002 and reflect the inspection results to different sections and related administrators.

B-1- The evaluation of Tehran justice administration’s different sections

Paying attention to the activities of the assistants and the chiefs of different judicial and administrative units, applying the reports of inspection boards and regarding other related subjects, the administrators are evaluated and they are replaced if it is necessary.

B-2- The recognition of the quality judicial – administrative forces

By applying the judges’ Id cards and doing different inspections we can recognize the quality forces and use them suitably and replace them for different appointments. It is obvious that such a way will help the firmness, stability and defense of management and recognition of weaknesses and causes to avoid inappropriate decisions.

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C- Supervising the public and specific bailiffs

In the public and revolution courts’ procedure law, the judicial area’s chief undertake the managing of the bailiffs. On the other hand, the respectable chief of the judiciary power has promised to help the disciplinary force tin the section, which is related to bailiffs, in order to solve the problems and coordinate the affairs.

D- The formation of the judicial police

The respectable chief of the judiciary power issued a notice in the year 2001 by which he notified the chief of the justice administration to form the judicial police. The content of the notice is as follows:

In the Name of the Almighty

Hojatol-Eslam Alizadeh

The general chief of Tehran justice administration:

Paying attention to the constitution law’s principle 156, the judicial system. Undertakes the duty of discovery, prosecution and following the offenses. In fact the constitution law has obliged the judiciary power to approve the draft of judicial power. Because, doing the above mentioned duty is required discovery organizations. The main aim of the judicial police’s formation is to train specialized forces as bailiff to help the judiciary power to do its discovery duty. It is obvious that, this competency doesn’t include the legal duty and obligation of disciplinary force as administrative police, which keeps the public order and prevents from offense and helps people and provides their comfort and security. To do the duty which has been determined by the Constitution Law, your are obliged (with the coordination of commander-in-chief) to attract forces and provide required personnel in accordance with Tehran judicial field. It is evident that your actual and successful operation in Tehran can be used as a suitable model for the whole country.

Syed Mahmood Hashemi Shahroodi

The chief of the Islamic Republic of Iran’s judiciary power paying attention to the above notice, it is one of the most important programs of Tehran justice administration to actualize the mentioned mission in the year 2002.

E- The celebration of conference

Every year, two conferences are held with the presence of the judges of the province’s justice administration. This year, we intend to hold the conference once in every 6 months. By reflecting the colleagues’ opinions in the past conference, we wan to invite the first rank authorities of the judiciary power to answer the questions. Meanwhile, we want to notify the policy of the province’s justice administration of the year 2002.

F- Intensifying the quality of examination of economic corruption

The great leader takes the affair of fighting against economic corruption as an important subject. He issued an important order, which addressed the chiefs of the three powers about fighting organized and all-sided fighting against financial and economical corruption.

Legal and clear information, effective programming and intensifying the strong points are some of the purposes of the province’s justice administration in the year 2002.

Arranging the relation of the management with the judicial-administrative personnel and with people, is one of the emphasized programs of the province’s justice administration. There force, in order to remove prohibitions of people’s communications with the administrators of the judicial units, and to inform the colleagues and prevent people and the colleagues to waste their time, the schedule of Tehran justice administration’s chief’s visits is regulated and announced.

G- Reducing the existing files and finishing the old ones

The guidance of the respectable chief of the judiciary power:

A program must be planned that in addition to examine the existing files in office hours, the delayed files of past year and instant year must be examined out of office hours. Therefore, the general chiefs of the justice administrations must provide the preliminaries and start the work. This plan will continue. So, all the judicial units are obliged to provide a real list from the files and determine their situations. It should be mentioned that the respectable chief of the judiciary power has explicitly confirmed that other provinces also must provide such plans to quicken the examination of the files.

H - The formation of process improvement committee

For the reason of recognizing the problems and thinking about their solutions and using experienced authorities, it was determined that a committee is formed under the supervision of the first deputy. The committee examines different subjects. The subjects are sent to programming council to be approved.

I – The continuation of Tehran programming council’s sessions

One of the operations of Tehran justice administration in the year 2001, was the formation of programming council. This council is hold every week and acts as the consultative assistant to the general manager of the province. The existing problems are presented in the council and examined. (The collection of the process-verbal of the year 2001 is copied so that the authorities become aware of them.

J - The continuation of monthly sessions of judicial units’ authorities

Usually, the important policies of justice administration were examined monthly. The authorities of judicial units, complexes, provinces, districts, revolution trials and revision trials participated in the sessions. In these sessions, the justice administration actions were evaluated. In each session, two individuals of judicial units’ authorities reported about their own judicial area’s operations. This important procedure will continue.

K – promoting the information level of Tehran justice administration

The respectable chief of the judiciary power has mentioned that one of the reasons of the judicial system’s oppression is the lack of clear information. The province’s justice administration has provided a chart and organization under the title of information and social deputy of Tehran justice administration. If they are approved, it will be strengthened. Note:

It should be mentioned that a special ceremony would be celebrated in different occasions. The judiciary power announces the details of the program later.

L- Strengthening of the unit of judicial guidance and help

Following the emphasis of the judiciary power’s chief, based on the fact that all the justice administrations and judicial units, throughout the country, must pay attention to the formation of guidance and help unit, applying aware, experienced and religious judges, fortunately, these units became active last year. Because he believes that these units can conduct people and prevent them from wandering state and unnecessary work. An assistant must supervise the activities of this unit. It will be requested from the Bar Association to help this unit.

M - Organizing the section of petition writers

Paying attention to the fact that petition writers can play a positive or negative role in the legal conduction of the people, organizing and supervising on this unit (by one of the assistant) will be one of the executive program of the year 2002.

 N- Regulating the income of the judicial units’ service stalls

In order to establish a unique way and policy and remove the legal difficulties of administrating the stalls, it was determined that this subject is centrally planned and supervised by the province’s administrative deputy.

O- Supervising on the prison and criminal ID card

Paying attention to the opinion of the judiciary power’s chief about the prison problem based on the fact that the prison management must be promoted and the fact that the prison is one of the most important problem of all societies especially our society, it is necessary to take a unique policy about the affairs of public and reclusion trials. Moreover, one of the problems of the whole judicial system especially Tehran justice administration is the important and advisable subject of criminal ID card. Suitable and on time access to the records has become a problem. So, one of the programs of the year 2002 is to appoint a deputy of prison and criminal ID card affairs to undertake just this responsibility.

P- The formation of Tehran selection core

Regarding this fact that selection core is active in all provinces, but in Tehran, the selection action is done by the judiciary power, so it takes a long time that the selection results are announced, it is required to follow the affairs of the selection core’s formation in the year 2002, by to financial administrative deputy.

Q -Statistics Unit

Although, one of the important events of recent decades in the field of science is the birth of new statistical ways based on which the figures are collected and analyzed, it is observed that the statistical system applied in the justice administration is not useful at all. Because, there isn’t most preliminary subject which is the existence of a unique statistical form (according to the trial’s realities).

By a brief examination, it is observed that at least several kinds of forms are used now in the justice administrations. The new civil and criminal titles don’t have any position in the applied forms. There isn’t any need to analyze the statistics so that the forms are copied and regulated based on the civil courts one and two. Unfortunately, today, the statistics, which has an undeniable effect on all the affairs of the judiciary power including legislation, execution, prevention from offense and providing judicial drafts, can not pass its most preliminary path here. If we want to evaluate the trial’s actions, we observe that the trials just count the number of finished files. There isn’t any factor for the analyses so the judgement and the documents based on which the judgements have been issued. The weakness and deficiency of the judiciary power in the field of the collection of family judgements as a scientific source have root in the system’s weakness in the collection of statistic information. The fact is that the finished files have different degrees. Some of them have just one page and others may have even more than 1000 pages. But our statistical system doesn’t differentiate between them. It is obvious, if we don’t take a qualified policy in order to control the rate of the surprising growth of the files, which enter the justice administration, we will encounter a serious problem in future. Therefore, Tehran justice administration explained the problem to the respectable plan and program deputy and suggested determining a group to extract the new titles and omit old civil and criminal titles and correct the statistical form.

It was determined to provide the exact statistics of judicial and administrative personnel, equipment, transportation vehicles and files in order to acuss to the statistics. The mentioned unit must be active in financial – administrative circuit. All the units must present their last statistical information to the mentioned unit in order to be analyzed and the needs are determined. The unit’s report must be used as a basis for the announcement of figures.

R – Readiness for the formation of prosecutor’s office

As the secondary committee of the programming council (about the revival of the prosecutor’s office) was formed last year, it will continue its sessions more active and mobilize other sections especially the financial-administrative deputy to equip and administrate the building and the related specific forces.

S - The spread of family complex and dead records

Although, renting a complex is difficult in Tehran and , on the other hand, in the case of the revival of the prosecutor’s office the province’s policy is to establish civil complexes centrally in several points of Tehran, it is one of the executive programs to extend specialized family complexes in 4 points until the revival of the prosecutor’s office. About the dead records, the old operations must continue and be strengthened. Also, a single article must be provided about the conditions of erasing the files and presented to the judiciary power’s parliamentary deputy.

T- Strengthening the specific commission of fighting against special offenses

The guidance of the judiciary power’s chief:

In order to facilitate the actualization of the judiciary power’s aims and missions in affairs related to individual and social rights, to establish public safe space, to do the regal duties, to play an effective role in dealing with the social problems (such as insecurity and social corruption), and to take effective executive ways which are on time and comprehensive and have already been emphasized, it is required that a commission is formed as soon as possible under the supervision of the justice administration’s chief. The commission must be composed of the commanders of disciplinary, mobilized, and the revolution guardian forces sand the persons who are in charge of the mentioned forces’ information units (which are considered as bailiffs). The commission must fight against some specific offenses (such as robbery of armed groups, social corruption, the wickedness of rascals and villain),…). The commission must act in such a way that these offenses decrease in the society. The province’s justice e administration has seriously decided to continue the following cases:

A- By holding the coordination sessions regularly, and providing an applied and comprehensive program, the justice administration strengthens the commission’s activity.

B-  Following and supervising the commission’s actions and evaluating the affairs

D – Presenting new suggestions and procedures in order to intensity the activity of the commission of prevention from (and fighting against) the special offenses

We hope to continue this movement and fight seriously against the offenders and corruption factors that disturb the society’s order and security and cause the spread of corruption and immorality in the society.

U – Welfare operations for the judges and the staff

In order to remove the negative spiritual and mental factors resulted in the great volume of judicial system, and to establish the spirituality of happiness, so that the respectable judicial colleagues try more, it is required to pay attention to the welfare affairs of them. Therefore, the following affairs will be done:

1. Try to improve the staff’s cultural and sport affairs by the celebration of cultural-sport matches and their enjoyment of the possibilities such as pool,…

2. The colleagues’ enjoyment of travel and pilgrimage places which has increased 205 relative to the last year.

3. Removing the urgent and financial needs of the respectable judicial and administrative colleagues by giving them a loan, which has increased 20% relative to the last year.

4. Appreciating the qualified and model staff in writing or financial form and giving them some advantages

5. Some operations about the celebration of travel-pilgrimage tours

6. Required operations for strengthening the house and consumption cooperatives of the staff

7. Strengthening the transportation service

V - Computer

Paying attention to the importance of the subject and the fact that Tehran justice administration’s chief is responsible for the computer affairs, it was determined to strengthen this unit along with the informative policy of the judiciary power.

W- The continuation of the cooperation council’s sessions of the organizations dependent on the judicial system.

The respectable chief of the judiciary power believes that reaching to a developed judicial system depends on the help of jurists, layers and teachers of the universities and religious schools. He mentioned that if we want to reach to this aim, we must coordinate the related organizations to the judicial system with development purposes. For this reason, in the year 2002, the sessions related to the coordination council of the dependent organizations (such as the Bar Association, the experts of the Land and Deeds Registry Organization, prisons, medical jurisprudence) will continue more actively.

The evaluation of the program

The executive program of the year 2002 will be evaluated of the end of the same year. The cases which have been done and their effects and results will be specified. 

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 Acquaintance with American judiciary system

Section 2

 Writer: Dr. Yadallah Ali-doost

5) Choosing the judges of federal courts

The way of choosing all the judges of federal courts in America is the same form the law aspect. In all cases, the president chooses the judge with the satisfaction and the confirmation of the Senate. These judges are chosen for the whole life and their yearly salary can’t be decreased. The government can’t force a federal judge to be retired. Each federal judge can choose the title of “senior judge” for himself if he was 70 or more years old, after working at least for 10 years. If a judge chose this title for himself, it means that a new judge can work in this position. The senior judge receives his salary to the end of his life and if he desires, he can examine the cases.

Anyway, a federal judge leaves judgment just in the case of death, resignation, or impeachment by the Senate office. The impeachment is the only instrument by which the government can put a federal judge away. But this way is very complicated and it has been used in America history less than 5 times so far. Although the way of choosing all federal judges is the same form the law aspect, there is actually much difference between the selection of Supreme Court’s judges and the judges of the circuit and district courts. The decisions of the Supreme Court of America have important effects on social and economical systems. Therefore the thoughts and actions of the person who is going to be the judge of the Supreme Court are studied and evaluated by beneficiary groups. After choosing the Supreme Court’s judge by the president, The Senate will be informed of the candidature of the selected person. The Senate passes the case to its legal commission. The legal commission also passes the case to a secondary committee. Different individuals and groups express their opinions about the candidate. The candidate also answers the senators’ questions. At last, the secondary committee announces it opinion to the legal commission and usually the legal commission confirms the secondary committee’s opinion and transfers it to the Senate. The Senate usually confirms the legal commission’s opinion too. In fact, the selection of the Supreme Court’s judges is commonly done by both legislative and executive powers.

The selection of the judges of circuit and district federal courts is easier about the selection of the district court’s judges the tradition is in this way that: If the president and at least one of the senators of that district are the members of the same political party, the senator chooses the judge and announces the selection. (Each state has 2 senators disregarding its extension and population.)

About the selection of circuit courts’ judges, the president has more authority. As it was said before, every circuit court covers several states. Regarding the fact that each state has 2 senators, the president tries to choose a judge who is supported by the majority of the senators.

We can get two results from the above statements: 1) The federal court’s judges of America enjoy fixed occupation, 2) The procedure of the selection of federal courts’ judges is a very political one. In fact, each president usually chooses the individuals who belong to his own political party, and the senators usually act politically about the acceptation or rejection of the suggestion too. But a question which is brought out is that: If the federal courts’ judges are chosen regarding political and party dependencies and they can rarely be discharged, won’t these individuals use the courts to advance the political purposes. In fact, how can we believe that the federal courts are independent and the judges won’t misuse the power to advance their social and political purposes? To answer this question is very difficult. We can say that American’s society accept that the subject of being conservative or liberal has effect on the court’s decision taking. But, the federal courts’ judges actually don’t (or can’t) to change the existing laws rapidly toward their social and political ideas. There are two reasons for this phenomenon. First, the law and judicial procedure limit the judges’ decisions. These limitations (which are examined later in this passage) prevent form the judges’ absolute freedom. Second, although the social philosophy and the way of action of some federal judges have been criticized and the process of the selection of federal judges is a political one, it has less happened that a judge is criticized for the reasons of not having competency, being corrupted (from financial aspect) or lack of integrity. The authorities believe that after being chosen, the federal judges know that the political procedures don’t affect their occupational stability. Therefore, they try to act in such a way that:

1) They haven’t been unsatisfied against their conscience, 2) They don’t cause to break the old beliefs and trust of people about the judiciary system, 3) They show that people’s expectations from them aren’t unreal, and finally  4) They accept independence and dignity for themselves. Therefore, according to the experts’ opinions, such an activity results in keeping the judge’s individual independence and finally, keeping the courts’ independence.

6) The federal courts’ administrative system

As it was said before, the Supreme Court, every circuit court and also every district court has a chief of judges. From the aspect of legal decision making, the judges’ chief has the same authority as an ordinary judge. Therefore, the judges’ chief doesn’t have any right to order a judge how to finish a case. But form the aspect of the courts’ management, the judges’ chief has many authorities. The judges’ chief of a court undertakes the responsibility of 1) the clerk of the court, 2) district’s interrogators, and 3) the judges of bankruptcy courts. The judges’ chief also undertakes the responsibility of the execution of the regulations related to the division of court’s work between the judges. He/she undertakes the work related to revision court more. The most important duties of judges’ chief are as follow:

1) The chairman ship of the circuit judicial council

2) The chairmanship of the conferences circuit judicial

3) Participating in the judicial conferences of the United States as the circuit representative

4) The division of temporary judicial duties between circuit judges

5) Having communication with the chief of the Supreme Court’s judges about the problems about which the circuit must contact with the Supreme Court.

The chief of the Supreme Court’s judges is the chief of tall judges in the United States and moreover he is: 1) the highest administrative position of federal courts, 2) the main spokesman of federal courts, 3) the chief of the judicial conferences of the United States, 4) The chief of federal judicial center’s board.

Judicial conference of the United States

According to the law, it is necessary that the conference is celebrated once a year. But it is actually held twice a year. The members of the conference are as follow: 1) The chief of the Supreme Court’s judges, 2) The chief of each circuit courts’ judges, 3) a district court’s judge from each judicial circuit, 4) The chief of claim courts’ judges, 5) The chief of international trade court’s judges.

  The duty of this conference is to do comprehensive studies about the actions and management of federal court and announces its suggestions and advice for the rapid execution of the court responsibilities and also, for the establishment of more coordination between the ways of court management. Also an another duty of the conference is to study continuously the actions and the effects of ruling regulations over the federal courts’ procedures.

Federal judicial center

The chief of the Supreme Court’s judges in America, is the board chairman of this center. The purpose of this center is to develop court management and to obtain developed management ways in the federal courts. This center has 4 departments as follow:

Investigation Department: The duty of this department is to recognize the cases in which the lack of information prevents from the presentation of programs which are required to improve federal courts. After recognizing these cases, the investigation department obtains the required information for decision making and transfers them to the decision-makers.

Systems Department: The duty of this department is to study and investigate about the ways which causes computer developments and data techniques be used in the courts’ management.

Training Continuation Department: The duty of this department is the training of individuals who work in federal courts. This department celebrates training seminars and classes for federal judges, clerks of the courts, and the lawyers whose job is to defend the poor accused.

Information Department: This department collects the approved regulations of the congress that affect on the judiciary power, and brings coordination between different organizations, which work, for the improvement of judicial system.

Circuit Judicial Council

Each circuit court contains a judicial council. All the active judges of the circuit are obliged to participate at the council. The judges’ chief of the circuit is the chairman of the council. A great part of the responsibility of federal court’s affair administration is transferred to the judicial council of that circuit. According to the law, every judicial must issue all the required orders for the fast and effective execution of justice in the related circuit. All the staffs and judicial administrators of each circuit are obliged to execute the orders of the circuit’s judicial council immediately. According to the law, each judicial council is required to celebrate 2 sessions in a year. They actually have more than 2 sessions in a year.

Conferences Circuit Judicial

There is a judicial conference in each judicial circuit. These conferences are held once a year. All the active judges of the circuit are obliged to participate in these conferences. Moreover, the law encourages the lawyers who work in each judicial circuit to participate in the conferences. The purpose of the formation of these conferences is to examine the actions and the procedures of the courts and to present suggestions and solutions for the improvement of the justice execution in the related circuit. Only the judges who are active in

The related districts can participate in the executive meetings of these conferences. In other sessions, the participants’ interesting subjects and the courts’ administrative problems are examined.

Administrative Office of the U.S Courts

The main purpose of this office is to help to mange the federal court system. This office does the studies and investigations requested by the circuit judicial council, judicial conference of the U.S and other above mentioned organizations. Then, it provides and distributes the required reports.

Clerk of the Court

Every district court and also every circuit court have a clerk. The court’s clerk acts as the manager of that court. The clerk undertakes the management of the non-judicial different complicated affairs. The clerk of the court employs and trains the required employees and assistants. From law’s opinion, it is not necessary that the clerk of the court has been a lawyer, but most of them are actually lawyers.

7) The law’s kinds and their priorities

In most judicial systems, all laws and regulations are resulted from the unique source. It means that the legislative power is the only source of legislation. Most of the laws and regulations are approved by the legislative power or established by the individuals and institutions, which have legislative authority, form the legislative power. It is that the courts establish law while settling the conflicts. In the judicial system of America, there are at least three kinds of law (the laws approved by the legislative power, the laws established by the courts and the laws resulted from the Constitution Law).

A) The laws resulted from the Constitution Law

The Supreme Court of America is the only source, which can interpret the Constitution Law of America. By this way sit can delighted the range of rights which the Constitution Law has specified for the people. All the laws approved by the congress and all the established laws by judges obey the laws, which are resulted from the Constitution Law. On the other hand, every law, which is, recognized against the Constitution Law by the Supreme Court, will be cancelled. Moreover, if the supreme Court issues a judgment and announces that the Constitution Law has guaranteed a right for people, the congress can’t approve a law which makes people deprived of that right. Paying attention to what was said, it is clear that the laws, which are resulted from the constitution Law of America, are the highest rank laws in the judicial system of that country.

B) The laws approved by the congress

If the congress establishes a law, all the laws, which have already been established by the courts that are related to this law, must obey the law of the congress. (The law resulted from the contrition Law is excepted.) On the other hand, the laws approved by the congress (statute) have priority over the

Laws established by the courts (common law) and over the principles of equity.

C) The law established by judges

During the examination of the conflicts of the individuals and legal persons, there are some situations, which haven’t been anticipated in the laws approved by the Congress. In these situations, the judge can’t tell the parties that the problem can’t be solved until the approval of a law by the Congress. In these conditions, the judge solves the problem by relying on the common traditions of the society and applying the pre-established principles, which the courts have already used, so that they establish new rules. As a result of development of established rules by judges, the courts accept some legal principles and regulations (for example: the real estate can be sold and bought only by written document) which no legislative assembly has approve them. These principles and regulations are interpreted as law in sofas as they aren’t against the laws approved by the congress.

D) The principle of Equity

Equity is the other system of rules established by the judges. The difference between equity and custom rules can be stated as follows. In the case of conflict removing, it there isn’t any rule approved by the congress, the judge solves the problem by the help of specified traditions and principles. By this way, the judge will establish a custom law. If there is a statute or a custom law for conflict removing, but the judge believes that the problem can’t be solved justly by these laws, he can use the specific principles and regulations of equity. (i.e. he solves the problem justly disregarding what the law says) Only the competent courts can apply the equity.

8) The role of federal courts in the interpretation of the rules

It was said in previous section that under the special situations, the courts can take a decision by applying equity and the rules approved by the judges. By this way, they can establish new rules. It should be mention that the court is establishing laws when they use the statute. Some of the lawyers believe that when a judge interpret the statutes, he is only finding a law, which there has always been. Most of the lawyers believe that reality is far from the mentioned theory. They believe while examining the statutes, all the courts accept that the court’s duty is to understand and act according to the opinion of the legislators. Only the courts are competent to examine the intention and conditions of the statutes. While examining these situations, the courts, in fact, establish the rules.

The lawyers and other authorities that believe the judge must understand the legislator’s intention and acts on it are famous as textualist on internationalist. On the contrary, there are other lawyers and authorities that believe a judge needs the help of justice principle of present situation and law purpose in order to access a better methodology to interpret the laws. In spite of the fact that a judge is closer to which group, in fact, only one judge starts researches for the interpretation of the words’ meaning, regarding the congress’ negotiations during history legislative. Most of the authorities believe when a federal judge uses a law which has been approved several decades ago on order to solve the current conflict, disregarding the fact that he is or isn’t textualist, he has actually interpreted the law as an dynamic element and has attributed some meaning and concept to it in order to solve the problem.

9)The competency and judgments of the Supreme Court of America

The Supreme Court of America is the only court, which has been mentioned in the Constitution Law of America. Its duty is to examine the decisions, in final revision stage, which have been taken by the lower courts. It has competency, in limited cases, to examine the conflicts in primary stages. These cases have been mentioned the principle 3 of the Constitution Law of America and the congress doesn’t have right to change them. The most important case, which the supreme court can examine them in the primary stage are the conflicts in which one of the parties is a foreign country or one of the states of American, For example, if a state court awards that a federal law is against the constitution law, one of the parties can request the supreme court to examine the lower court’s judgment. In this case, the Supreme Court is forced to give a positive answer to this request. Above all, the Supreme Court has complete authority to accept or reject every revision request, which it receives. The Supreme Court accepts only those requests in which there is an important problem. For example, if a legal (civil) problem has been examined in several circuit courts and they have issued different judgments, finally the supreme court accepts are of the revision request to examine the case and by issuing its own judgment, it brings and end to the various judgments of lower courts. Every revision request must be related to the rights and duties of individuals or specific legal persons, which have unfriendly relation ship with each other. For this reason, the supreme court’s decisions, apparently, specify the party’s right and duties, but actually, they affect groups and specify the legal policy of the country .The supreme court of America can both cancel the approved rules of the congress ( for the reason that they are against the constitution law )and specify the range of the rights which the constitution law has guaranteed for people . In the case that the supreme court expresses its opinion about one of rules approved the congress, if the congress doesn’t agree with the judgment (and the judgment isn’t according to the constitution law), the congress can approve a law which cancels or change the supreme court’s judgment. In the case that the Supreme Court’s judgment is to the constitution law, the congress can’t change the judgment any more. In this case, even if all the people don’t agree with the judgment, the court’s judgment remains as the country’s law and nobody can change it. There are too ways in these case to change the law. The first and easy way is the one that the Supreme Court itself changes its judgment. The second way is to change the constitution law. The second way is very difficult and time – consuming, In fact it is unpractical. (Because, for the change of the constitution law, a change suggestion at first must be approved by 2/3 of the congress members and then by 2/3 of the states of America.)

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Statistical performances of Tehran province court

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 April 2002 had been 84752 files -Its decrease comparing to March 2001 was: 23855 files.

· Total closed files in April 2002 85566 files. Its decrease comparing to March 2001 was 24079 files.

· Total performance and minus of the extant of documents in April had been: 814 files – Its decrease comparing to March was: 227 files.

· The minus of referred files in April 2000 and 2001 was: 21272 files.

· The minus of closed files was 25669 files.

· The minus of referred files in April 2001 and 2002 was: 11118 files, and the minus of the closed files was: 7930 files.

· The increase rate of referred files in April 2002 in compare with 2000 and 2001 was respectively: 33.5% and 15 %.

· The increase rate of closed files comparing 2000 and 2001was respectively: 43% and 10%.

· Total reheard files: 62% out of all cases.

· Decrease rate than March : 2%

· The quashed judgments by rehearing courts :  20%

· Its increase rate  than the previous month : 1.18%

· Amended  files due to quashing  judgments  :  5.6%

· The most files referred to public court of Golestan province, were 2563 files. 

· The second one in referring files was: family complex, branch 1715 with 1329 files.

· The third rank in this concern belongs to: Branch #15 of Karaj Justice Administration with 1104files.

· The fourth rank belongs to: Rehearing court, branch #13 with 698 files.

· The fifth rank  belongs to : Tehran  Revolution court  , branch #26  with 526 files .

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

·  The second aforesaid rank belongs to: 6^th. Branch of Imam Khomeyni Judicial Complex with the examination period of 7 month .

·  The third rank in common belongs to  : Branch 4 of Shariyar justice administration, and 3 public courts of Golestan province and 16 revision courts  with a 6-month period .

  Grading among complexes as follows:

  Mahalati and family complexes  were in first rank according  to numbers of active branches and closed files  with 251 closed files  .  The second rank belongs to criminal affair complex  with 171 closed files , third : Ghods complex  (161 closed files).

 But among Justice Administrations :  First : Shahriyar ( 151 closed files ) ,  Second : Shahr-e -ray(141 closed  files )  , Third : Pakdasht(137 closed files ) , Fourth :  Islamshahr (126files)  .

  And among  public courts : First : Golestan court ( 282 closed files ) , Second :  Nazarabad(248 closed files ) , Third :  Fashafoyeh(209 closed files )  and Forth : Chahardangeh ( 206 closed files ) .