Editor in Chief’s Note

Editor in chief in this issue sets forth the serious observation of the subject of management of judicial units and states that “many of the clear-sighted persons believe that reasons of success and failure of the judicial units are their difference in management. In fact vital organ of each judicial unit is its management. This is the director who can intelligently prepare an environment in which the individuals work to each other so that they can achieve the determined goals in the executive plan.   

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A Selection of Latest Legal Approvals

q       Precedent verdict No. 670 dated Nov. 30, 2004 of General Board of Supreme Court regarding election of the competent investigation authority concerning fine of deduction of emptying of the goods emptied in the Customs area by transporter.

q       Verdict No. 577 of General Board of Administrative Justice Court regarding cancellation of Articles 7 and 8, note under Article 8 of Executive By-Law of Organizational Houses Sell

q       Notification of Judgments of Administrative Justice Court to the districts municipalities is enough for execution. Verdict No. 541-2 of General Board of Administrative Justice Court concerning cancellation of Circular Letter of Verdict No. 317/12068 dated Jan. 25, 1995 of Legal Director General of Tehran Municipality

q       Taking difference of subscribe factors at the time of extension of construction license is illegal. Verdict No. 515 of General Board of Administrative Justice Court regarding cancellation of Note 3 of clause B of Instruction No. 3900/1/3/34 dated May 7, 1990 and Instruction No. 38705 of Minister of Interior

q       Verdict No. 553 of General Board of Administrative Justice Court concerning cancellation of Articles of By-Law for quality of providing security of legal gatherings approved on session dated Sept. 21, 2004 of Council of Ministers

q       Executive By-Law of Law for manner of granting fetus to the infertile spouses

q       Some points of Budget Law of the Year 2005 of the State

q        

q       Interpretative Theories of Guardian Council concerning Principles of Constitutional Law

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Disciplinary Warnings         

q       Introducing the accused to the police station instead of prison after his inability of depositing pawn and … as described in Judgment No. 232-233 dated Aug. 24, 2004, drawn up by branch … of Judges Disciplinary High Court is violation.

q       Degradation of two judicial ranks of defendant judge because of 6 cases of disciplinary violation as described in Judgment No. 425 dated Dec. 1, 2004, drawn up by branch … of Judges Disciplinary High Court

q       Documentation of report of disciplinary authority based on peace and compromise in issuance of writ of non-prosecution is legal and is not considered as violation. Judgment No. 279 dated Sept. 9, 2004, drawn up by branch …of Judges Disciplinary High Court

q       Written reprimand of the defendant judge and insertion in his service file because of writing discourteous issues, as described in Judgment No. 446 dated Dec. 18, 2004, drawn up by branch … of Judges Disciplinary High Court

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One Vote, One Experience

Reversal of initial judgment in Court of Appeals and 10 notes:

Please kindly pay attention to the following judgments:

1.        Judgment No. 1310 and 1311 dated Oct. 9, 2004, drawn up by branch … of Public Criminal Court

2.        Judgment No. 1166, drawn up by branch … of Court of Appeals of Tehran Province

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Around the Table

The following questions were discussed in the around table, the commission majority or unanimity of votes are as follows:

314- If there is any dispute in proving competence, who is the authority for dispute settlement?

Opinion of majority of votes of the members of the current commission in the session dated Aug. 26, 2004 (Shahrivar 5, 1383)

Article 47 of the former civil procedure has predicted making dispute in the proving and disproving competence between courts of justice administration and non-justice administration authorities and manner of dispute settlement has become specified in the next articles of the said law. In the new civil procedure code, and in article 28 of this law, making dispute has been predicted only concerning proving competence between judicial and non-judicial authorities and the authority for dispute settlement has become specified but regarding the fact that dispute of proving competence between public, military and revolutionary courts may be made or not, there is no law but regarding the question which attains possibility of dispute making of proving competence and also concerning the legal generalities, it can be said that dispute in the proving competence between the above motioned courts is possible, as a result, the rules that have been ratified about dispute concerning the competence provide for its two aspects (proving & disproving) in this case the regulations which are used for dispute settlement of disproving competence (Articles 26 to 30 of new Civil Procedure Code) are used for dispute settlement of proving competence too.

315- Writ of attachment of relief which is issued by the public prosecutor’s office: A- Which authority is liable to execute it? B- In case it is executed by civil judgments executions and a property is attached and a third person objects it by claim of a right, which authority is competent for investigation of the said third party objection?

Opinion of majority of votes of the members of the current commission in the session dated Sept. 23, 2004 (Mehr 2, 1383)

The complainant can request writ of attachment of relief of the accused properties from the public prosecutor’s office for his incurred losses as a result of crime commission. This writ is issued in compliance with legal regulations by the public prosecutor’s office. Penal court investigates the penal affair upon the request of the complainant  regarding the losses that according to Articles 35 and 36 of By-Law of Amendment Law for Establishment of Public and Revolutionary Courts Law and Article 286 of Public and Revolutionary Courts Procedural Law in the penal affairs, execution of these judgments are performed according to the regulations inserted in chapter of execution of civil judgments and at present the purpose of execution of civil judgments is civil judgments execution law approved in 1977 but regarding the above question, it is no debt that nature of the subject is a civil affair. In answering the first part of this question, it shall be said that regarding the civil nature of writ of attachment of relief, even though it is issued by the public prosecutor’s office, it is executed by civil judgments execution and in answering the second part of this question, it is assumed that writ of attachment of relief issued by the public prosecutor’s office is executed in civil judgments execution and some properties have been attached but a third party objects the said writ and the attached property and claims for right, in this case is the penal court competent for investigation or the court of law?

As first of all the third person has no intervention in the penal issue and for this reason the penal authorities have no guardianship on him, second: in the civil affairs, the principle is investigation competent of the courts of law because claim of the third party has civil aspect and maybe there is dispute in ownership of the attached properties and it needs investigation in ownership proving and this affair shall be undertaken by the court of law. With respect to the above cases and regarding the fact that the third claim, as subject at issue, is a civil and legal claim, it is evident that the court of law is competent for investigation.  

316- How is the dispute between public prosecutor’s offices of two provinces and public prosecutor office of a province with the public and appeals courts of the other province in which public prosecutor’s office has not been established also between public prosecutor’s office of a city with public courts of the district settled?

Opinion of unanimity of votes of members of the current commission in the session dated Sept. 23, 2004 (Mehr 2, 1383)

Goal of the legislator is that in case of dispute between two judicial authorities, one high authority who have domination over the both authorities having dispute, shall settle the dispute. At present there is no clear text about dispute settlement between the public prosecutor’s offices as well as public prosecutor’s office and the courts so the previous and the existing laws shall be used such as Note 2 of Article 17 of Law for Establishment of Penal Courts 1 and 2 and Amended Article 3 of Law for Establishment of Public and Revolutionary Courts which refers limits of competence, duties and powers of the public prosecutor’s office to Public and Revolutionary Courts Procedural Law in the penal affairs and according to Article 58 of the recent law, dispute settlement in competence in the penal affairs will be as per Articles 27 to 30 of Public and Revolutionary Courts Procedural law in the civil affairs. According to the above cases:

1.        In case of any dispute initiating between public and revolutionary public prosecutor’s office of two provinces, authority for dispute settlement is Supreme Court.

2.        In case of any dispute initiating between public prosecutor’s office of a province with public or appeals courts of the other province in which public prosecutor’s office has not been established, dispute settlement will be undertaken by Supreme Court.

3.        In case of any dispute initiating between public prosecutor’s office of a city with district court located in one province, dispute settlement is by Court of Appeals.

4.        In case of any dispute initiating between public prosecutor’s office of a city with district court of another province, authority for dispute settlement is Supreme Court.      

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Educational System in England

In this part, the writer set forth the following:

Pre-University Studies

University Studies

Academic Courses

1.        Higher Diploma or HNC, HND, College Diploma

2.        Bachelor

3.        Post Graduate diploma (PGD)

4.        Master

- This course is presented in two forms: A- By Course B- By Research

5.        M.Phil

6.        Ph.D.

Manner of Evaluation of the Academic Certificates

Introducing Universities and Higher Educational Centers in England

A)      Universities and Higher Educational Centers in England, grade 1 (Distinguished)

B)       Universities and Higher Educational Centers, grade 2 (Good)

Although certificates (Ph.D., Master, Bachelor, HND) of universities of grade 2 can be evaluated but it is recommended that the students study in the universities of grade 1 (distinguished) for PhD course.

Table for Evaluation Quality of Academic Certificates of Universities of England

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Writing Criticism of One Verdict

Mohammadreza Khosravi

In this part, the writer set forth a judgment issued by General Board of Supreme Court and emphasizes that this judgment is not without defect and literary mistakes, then he mentions the problems.

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Competence of Prosecutor’s Office & Public Courts and Diplomatic and Consular Judicial Immunity

Written by Mansour Pournouri, Ph.D.

Chief, Branch 3 of Tehran Public Court

Diplomatic and consulate immunity, means security of its holder of following up and execution of law of the government accepting it, is one of important subjects of diplomatic and consulate international law which is considered as exception of principle of territory competence of the countries. The governments have full freedom in exercising of governing authority on all the individuals and properties existing on their territory in compliance with international laws rules and through domestic law which is interpreted to competence of compilation, approval and execution of national law.     

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Applied Suggestions of Court of Appeals of Tehran Province

First Part

To confront proceedings prolongation in our judicial system, has considered as subject of study and research. In this summary our motive is not presentation of a technical work and increasing a few pages to the legal literature in this regard. Therefore concerning the solutions which the writers have in mind and relying upon scientific and university degrees and judicial experiences consider them effective in problem solution. This kind of confrontation the issue is not mentioned in the instruction and at last the side problems which are not directly originated from the judge and the administrative organization of the work, such as issue of bailiffs, experts, Department for Registration of Deeds and Real Estates and State Organization for Civil Status Registration, Post Office, Transportation Office, Insurance Office, etc. are entrusted to the other opportunity and other group of the colleagues. Of course Court of Appeals with support of the colleague in charge in Department General of Project & Plan of the Judiciary, will increase its endeavor in removal of problem of expertise and effective decreasing of the inquiries.

Nevertheless the present solutions are based on the scientific experiences and routine confrontation the problems which has role in the cases in suspension and client and proceedings prolongation. These problems have been observed in a part with statistical control (limited sampling) of the cases entered to the Court of Appeals of Tehran Province and in other part they have been obvious by statistics as well as qualitative control of the judges work and in summary it is related to the case and the office work.         

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Cyber Crimes

Written by Mohammad Hassan Deziani

Second Part

In this part the writer intends to introduce one service of the Internet services in particular and cyber area in general instead of mentioning several issues of different branches of law and cyber crimes and sets forth penal, prevention and technical aspects and provides a ground for the readers hereof specially the judges for handling with practical subjects as well as theoretical ones.

Then he explains the following subjects:

E-mail

A-      Technical Aspect

1-       Possibility

2-       Importance

3-       Opening

4-       Review of E-mail

5-       Technical Recommendation  

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Historical

First grade judges were called “Sadr” and second grade judges were called “Ghazi” but superior directorship of the judicial system was undertaken by “Sheikholeslam” as per Sunnah religious jurisprudence. Obvious example of “Sheikholeslam” of Teymouri era is ABDORRAHMAN JAMI (898-817), the greatest scholar, Gnostic, writer and poet of Harat Teymouri era ……..

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Commission

Point 21- Dismissal statement to the public prosecutor general assistance

Point 22- There is no condition for the interrogator’s measures in the manner that he has been observer of flagrant crime such as necessity of referring to the public prosecutor.

Point 23- Obligation of properties resulted from crime

Point 24- Writ of non-exit of the accused

Point 25- The interrogator following of the deficiency announcement of the public prosecutor 

Point 26- Delegation

Point 27- The active files in the public prosecutor’s office can have precautionary time for completion.

Point 28- Guard

Point 29- The interrogator does not have competence for primary research in the crimes within the competence of Revolutionary or Public Court.

Point 30- Issuance of several writs of attachment does not have legal aspect.        

Point 31- Issuance of writ of relief attachment by the public prosecutor or assistant to the public prosecutor general is not illegal.

Point 32- Public prosecutor’s office shall follow the court’s opinion.

Point 33- Protest of the public prosecutor to the writ of relief attachment issued by the interrogator has not been foreseen in the law so occurrence of dispute is not conceived too.  

Point 34- There is no difference between the fact that the writ has been issued in the office hour or in the guarding time, the writ shall be agreed by the public prosecutor.  

Point 35- Respite of opinion announcement by the public prosecutor

Point 36- Order suspending prosecution can be protested by the beneficiary.

Point 37- Dispute between the court and the public prosecutor in recognition of type of crime is cancelled.

Point 38- Signing the judgment by the public prosecutor or assistant to the public prosecutor general delegated in the court is as judgment notification.  

Point 39- Dispute of Public Prosecutor’s Office and Court has not been foreseen in the laws and Public Prosecutor’s Office shall execute the Court decision.  

Point 40- Penal Courts cannot essentially bind the public prosecutor’s office for performing investigation contrary to regulations of Note 3 of Article 3. 

Point 41- In case of reversal of final writ by the court, public prosecutor’s office is entitled to execute it and cannot issue the reversed writ again.            

Point 42- All the terminated penal cases (before-after establishment of the public prosecutor’s office) shall be notified to the public prosecutor after rendering the judgment.

Point 43- Participation of the public prosecutor in the court hearings is necessary while the court convene a meeting for investigation of nature of case.

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Special Report

In this part, Mr. Asgari, In Charge of Judges Evaluation has been interviewed. He answers the reporter questions in this regard.