Editor in Chief’s Note

Nowadays the subject of substitute punishment is set forth, with considering the present situation which is far from the imprisonment punishment philosophy that is to reform, and retrain the condemned persons and to bring them back to the society, practically, despites all efforts done, the prison is convert to a place of suffering and painfulness.

Congestion of prisoners, lack of enough and standard place for them and not being able to comply the prison department with the scientific norms is a reality, which put human right’s basis in danger.

Mr. Mohammad Reza Zandi suggests the separation of prisoners and classified them according to the crimes, which committed by them, as the most important measures, which have to apply in the prisons.

We should never forget that the prisoners are humans, and if we are not able to retrain them during their condemnation term, we should not also deprive them of human preliminary rights.

Ms. Mary Robinson, the high commissioner of human rights, said” the new strategy of stable improvement needs a new definition of human rights, a kind of human rights is needed that do not put attention only on the human’s freedom, freedom of speech, and subjects against torture…but emphasize on the human primary rights like water, food, place, and health.

(Mr.Mohammad Reza Zandi)

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A Selection of Latest Legal Approvals

- With identifying the people and attaining their nationalities by the judicial authorities, securing council could not prevent of identification papers issuance.

- The executive by-law of hunting

- According to Supreme Court precedent no. 657 dated 1380/12/14, paying the cash fine by the bail, will not remove his responsibility of introducing the condemned person.

- Competent authority for the companies and passenger transportation institutes’ violation, regarding to article 5 of Conviction of Companies and Transportation Institutes Act to use the bill of lading and passengers statement modification act approved in 1368.

- Paying the salary of the employee who is in suspension period is possible only after his acquittance.

- The supervision council only in the event of committing the crime of article 27 is authorized to annul the publications credits.

- The governor general is not authorized to receive any toll from those who collect sand from the public domains or real estates.

- Rretrogradation in rank of employee is the authority of the management.

- Executive By-Law of Law for transplantation of organs of the deceased patients or the patients whose mental death is certain.

- Objection to the Verdict of the Judge of Commission of Single Article of Law for determination about disputed lands of Article 56 of Jungles is not an obstacle for execution.

- Marriage before 13 & 15 years old is forbidden except by the competent court verdict

- Determination of Enjoyment Allowance for the Judges and Employees of the Court Divisions

- Head of Organization and Directors-General of Forensic Medicine of the provinces & cities can exempt the insolvent persons from paying the cost.

- The pension of the judges shall be calculated on the basis of their salary coefficients in each year.

- Determination for positive documents & evidences of ownership is not within scope of powers of the Executive.

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One Vote One Experience

In this case, the plaintiff who is a person whose cheques was stolen by the robbers, and robbers by referring to the banks without having any problem have received all amount of the cheques, claimed that this the bank which has not identified the robbers while presented the cheques to them, and bank has to recover his damages which is equal to the amounts of his five stolen cheques, the court of first instance issued the order in the favor of the claimant and believes that the banks are responsible for paying the cheques amounts to a person who is not the owner of the cheques, but the court of review had the opposite idea, and did not accept the banks responsibility.

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The Last Defend of Mr. Nosrato Dole Firooz’s Trial

Second part: 

The last defendant finished at 10 am, Nosrato Dole on the contrary to Teimor Tash, defended with proud in the court, statements that he said as his last defendant, has many important legal points. He used all the secrets of speech; sometimes he spoke very loudly, sometimes with smile and in a low voice and sometimes by teasing.

During the trial he never mentioned the name of Shah; some of the judges of the Supreme Courts who were verifying his case were under the supervision of Nosrato Doleh for two periods. The police made his case intentionally, and they condemned him for executing the Shah’s dream.

Prison Affairs and Criminal Records Deputy of Tehran Province Justice Administration

This deputy started as an active office from 1377, the responsible of this deputy is Mr. Reza Jaafari and he supervises on all the prisons of Tehran Province (Evin, Ghasr, Ghezelhesar, Rajaie Shahr, Khorein of Varamin, and Fashafooyeh), and proceed the prisoners affairs. This deputy has a representative in criminal identifying general office o9f Tehran Province. You can find the judges and administration employees’ names of this deputy.

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Meeting with the Denmark human right’s delegation  

This meeting was held in 1381/17/7, in the Justice Administration of Tehran province Deputy in Education and Research.the Denmark human right delegation were consists of Messer. WesterDegard, and Vagen Griev and Ms. Maria Lenn.

In this meeting the deputy of training and research while welcoming to the delegation, provide them with a picture of the judicial system of Iran, and he also declared his interest to have mutual agreement regarding to cultural research and training.

The responsible of Denmark human right center declared that they held intensive classes for the period of three weeks twice a year, which its subject is different issue of human rights, and those who are interested in participating in the classes could easily fill in the special applications.

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Around Table

The following questions were discussed in the around table held in 81/5/3, the commission majority, minority or unanimity of votes are as follow:

Question No.245 

Considering Article 12 of Cheque Issuing Code, Do the losing party’s former imprisonment and/or his detention term would effect on calculating his 1/3 cash fine in the event that the claimant remits during executing the final judgment?

Absolute majority of votes

According to stipulate of the latest part of article 12, which prescribes whenever after

Issuing the final judgment, the claimant remits and/or  the loosing party provides the amount of the cheque and late payment damages ,and other damages mentioned in the judgment writ; executing of the writ shall be stopped and the loosing party is only obliged to pay the amount equal to 1/3 of cash fine laid down in the writ which will be recovered in the interest of government , by the order of public prosecutor.

Therefore the Legislator clearly determined the order. Considering the detention term in this case and deducting from 1/3 of the reducted cash fine is illegal. 

Question No.246

Does the Lash Punishment Nullification Code, clause 3 approved on1344/4/6; about issuing temporary detention award has still its absoluteness or by considering Criminal Procedure Code, article 35 has lost it?

Unanimity of votes

1-With regards to Criminal Procedure Code, article 35, clause 5 approved in 1378; which is the latest decision of legislator and is latter code,

2- since the lash punishment nullification code, clause 3 approved in 1344 is a public law and is considered as one of the definitions of article 35,

3- the criminal procedure code is a procedural law,

4- and is retro active so removes the absoluteness of the lash punishment nullification code.

We get to this conclusion that clause 3; of single article of lash punishment nullification code has lost its general application.

Question No. 247 

In case of finality of award in the fraud crime, and if the loosing party appeals reconsideration on his/her punishment quantity relying upon withdrawal of the case by the claimant; is it possible and legal to commute the imprisonment punishment to less than one year?

The Majority Opinion

According to explicitly of fraud & embezzlement & bribery perpetrators’ aggravation of penalty Act, article 1, sub article 1, approved on 1367/15/9; that judges and lawyers believes it as a special law, regarding to the question the court is only authorized to determine the minimum punishment permitted in article 1 of the said law (one year imprisonment) and to sentence the losing party to less than one year imprisonment by the court (court of the first instance & courts of review), is forbidden. Because article 227 of Criminal Procedure Code explicitly declares that the court will mitigate the punishment absolutely in the frame of law and complying sub article 1of article 1 of the said law is mandatory.

The Supreme Court precedent No. 628 dated 1377/6/30, verdicts Nos. 302 dated 80/7/16 and 539 dated 1380/12/6issued from the division 35 of the Supreme Court and also legal department opinions Nos. 7085 dated 1371/6/25 and 7/2763 dated 1371/5/14, all confirms and affirms the above-mentioned opinion.

Minority of Votes

By considering the approving philosophy of art 277, Criminal Procedure Code, which is a legal establishment in order to commute and mitigate the penalty after finality of award and is accepted by the legislator; in this stage a new state arises which is not liable to aggravation rules, meanwhile the limits inserted in fraud & embezzlement & bribery perpetrator’s aggravation of penalty Act, article 1, sub article 1 approved on 1367 is exclusive to the court of  first instance and court of review, and has not applicability to Article 277.Therefore with the permission of article 277, it is legal to commute or mitigate on the penalty to less than one year imprisonment.

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Justice in Islam

Part 10

In continuing the previous session, and the defendant’s respond in presence of the judge we could consider his/her respond in four states.

First state: confession on what has been claimed against him, in another word admission of indebtedness.

Second state: he/she abnegates and believes he/she is not a debtor.

Third state: he/she accepts the debt, but claims that he has paid the due amount, or the claimant bestowed and granted the due amount and acquitted him from the obligations of paying the due amount.

Forth state: the defendant does not answer to any of the claimant’s claims and remains in silence.

Now in explaining the first state, if the defendant confesses, in case of he claims for his debts or the confession conditions such as maturity, wisdom, capacity and other conditions come to pass; it is the judge’s responsibility to issue the award and obligated the defendant to acquitted himself from the debt, and finish the dispute.

The great leader of our Islamic revolution, Imam Khomeini in his precious book Tahrir ol Vasile, volume 2, page374, after explaining the above mentioned matters, describes some other factors that because of their importance we bring here the exact statements:

After that the defendant confessed to what the claimant has claimed, and judge ordered that the object of claim is belong to the claimant, and dispute finished, all the related matters to the claim, would be result to the order, such as not permitting of reversal of judgment, or in case of referring to the other judges, not permitting to hearing by the said person, even if the defendant confess in the favor of the claimant but the judge does not issue the correct and needed order, the defendant confess is condemned to deliver the object of the claim to the person in whose favor the admission is made and nobody is entitled to possess it unless with the permission of the claimant. 

If the defendant doesn’t make the confession, but the claimant’s claim prove with evidence, it will have the same circumstances like above, except obliging the defendant to deliver the object of claim to the claimant.

About the differences between the evidence and confession, you will find the opinions of great professors, who has not the same idea regarding to the differences of theses two definition, you will see the ideas of Mr. Saheb Javaher, and also the other ideas like Mr. Ashtiani’s.

(Mr. Abasali Alizadeh)

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Loss Prospective Profits and Possible Interests 

These two legal expressions are the subjects of Criminal Procedure Code, Article 9, Clause 2, and Civil Procedure Code, Article 515, Sub article 2.

Regarding to the relation of these two expressions and determining their limits, firstly  it is necessary to define those words which are related to the subject from the etymological and terminology point of view.

So you will study in this article their specific definitions, their differences, the philosophy of the loss action, definition of loss action, the history of loss action, the nature of loss action, the difference between loosing the benefits and possible interests, the conditions to open a case and act with the subject of possible interests a) the procedural conditions, b) fundamental conditions, and finally the conclusion of the subject which represents different ideas as follow:

1- to consider the loss profits a part of possible interests, because the loss of profits is a kind of interests which its possibility of its gaining in the future has been removed therefore is a part of possible interests.

2- to consider the possible interests a part of the loss profits, because the possible interests is a sense of loss and damage action and also since the loss and damage action is basically a legal action, by considering this fact that the loss of profits is also presumed as a legal action; therefore the possible interests action in fact is derived from the loss of profits.

3- no relation is concerned between these two expression; consider them as contradictions, but with the attention to the definitions of these expressions we will conclude that this idea is rejected.

4-firstly both of them have the legal nature, secondly both are in common regarding to their subjects and basis, and the only difference is that the interest vanishing factor in the possible interests is the act which has criminal title, but in the loss of profits the doesn’t have any criminal title. But this factor could not make a difference between these two and change their natures.

(Mr. Jamshidi)

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Orders of Disciplinary Court of Judges

- Not receiving and hearing the last defend, and not mentioning the name of the right and legal authority of Court of Review at the bottom of the order is a disciplinary breach.

-          To issue the order farther up from the object of claim is contrary to Civil Procedure Code, Article 2, and will result in disciplinary condemnation.

Fraud a Crime of Commission 

In this article, one of the most important crimes against properties that is fraud has been considered. Legal changes made in this regard, set forth in this discussion. The professor in this speech, considers fraud as actus reus crimes. These issues have been mentioned in the 11^th period of the judges in service training.

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The Quran Congress

The second Quran congress was held at Velayat gathering hall of the Justice Administration of Tehran Province at the end of Ramezan holly month. This ceremony began by message of the Honorable Chief of the Judiciary read by Head of Justice Administration then the State Public Prosecutor General delivered a speech about importance of Quran.

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Statistical Performance of Tehran Province Courts

In this section, we draw your attention to the classification of Tehran province courts according to their statistical performances, which has been classified, by ministry of Justice.

Acquaintance with American Judiciary System

In this part you will get familiar with the procedures from filling the indictment till preparation for the trial.

a)       Guilty plea

b)       Pretrial discovery

c)       Pretrial requests

d)       Preparation for the trial

Part 8

(Yadollah Alidoost, PH.D)