Editor in Chief’s Note   

In this issue, the editor in chief congratulates the New Year and then states: “In the statistics of the last year, not only we have had increase of the finished cases but also we have had decrease of the entered cases which is considered remarkable in the history of the justice administration of Tehran province. In 2006, we had %22 decrease of the cases in the family courts, in the public prosecutor’s office: that is first entrance of the penal cases in the office of assistance to the public prosecutor general %28 and in interrogator’s office %21, in the courts of law %11, in the penal courts %16. We had the cases entrance decrease, especially in the public prosecutor’s office in the interrogation office %9, in the office of assistance to the public prosecutor’s office %12 and in the family courts % 12 in comparison with the last year. Attention to the old cases, endeavor in preparation of justice administration automation and dead records, hard follow up regarding instructions of proceedings lengthening and first rank of Tehran Province throughout the country, the common scientific gatherings with the professors of the important faculties of law, continuous and comprehensive education in the most judicial units of the Tehran province, up dating of the only state laws website, separating the non reliable personnel, making the justice administration of Tehran space judicial, prevention of tumult, movement towards selection of deserved people have been definitely the criteria of achievement of the executive plan of 2006. But in 2007, we intend to develop in the following cases:

A- Management, B- Standardization, C- Special and Serious Attention to the Notification Affair, D- Decrease of the Penal Population and Prison, E- Dispute Settlement Council, F- Amendment of Supervision Process by Goal of Separate View for Investigation and Evaluation G- Continuous Control and Evaluation of Plan During the Year, in the Management Gathering and Sessions, H- Support and Up Dating the Specialized Branches in the Affair of Privatization concerning General Policy of System in the Principal 44 of Constitutional Law, I- (Penal and Civil) Judgments Execution, J- Prevention 

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A Selection of Latest Legal Approvals

Law for annexation of one note to Article (336) of Civil Law approved in 1928

Verdicts Nos. 537, 538, 539 and 540 of General Board of Administrative Justice Court regarding cancellation of Clause (KH) of Article 1, 2, 3, 5, 6, 9, 13 and 15 of Approval No. H23687T/36046 dated Nov. 7, 2000 and Clause 1 and Note of Clause 2 of Approval No. H29101T/58977 dated Mar. 8, 2004 of Council of Ministers

Verdict No. 685 of General Board of Administrative Justice Court regarding competence of braches of Administrative Justice Court concerning demand of the treatment charges from Medical Services Insurance Organization

Verdict No. 686 of General Board of Administrative Justice Court regarding obligation of Medical Services Insurance Organization for payment of the treatment charges and costs and limit of the approved tariffs

Verdict No. 609 of General Board of Administrative Justice Court regarding Office Deprivation Allowance

Verdict No. 759 of General Board of Administrative Justice Court regarding incompetence of branches of Administrative Justice Court for investigation of the complaint of member of Islamic Council in relief of membership deprival

·                      Verdicts Nos. 808 and 809 of General Board of Administrative Justice Court regarding inclusion of law for investigation of the administrative violations of the contractual employees

·                      Law for amendment of Clause 4 and Note 2 of Article 28 of Elections Law of the Islamic Consultative Assembly approved in 1999   

Law for amendment of Elections Law of the Islamic Consultative Assembly

Verdict No. 8 of General Board of Administrative Justice Court regarding non-competence of commission of Article 100 of municipality law for the rural constructional violations outside the geographical realms of the cities limit

Amendment of approval subject of appointment of the government representative of the Islamic Republic of Iran in the intellectual ownership world organization  Opinion of Guardian Council about Article 52 of Trade Law

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Disciplinary Warning

Conviction to diminution of one judicial grade, for measures against dignity of judgment inserted in the judgment No. 868 dated Sept. 2, 2006 of the Judges’ Disciplinary Appeals Board

Judgment No 58 dated May 16, 2004, drawn up by branch …of Judges’ Disciplinary High Court: unjustified leave of absence in the judicial training course causes to the disciplinary conviction

Judgment No 308 dated Oct 10, 2006, drawn up by branch…of Judges’ Disciplinary High Court: Verdict rendering before the expert’s opinion notification and stipulating the legal expenses in the execution writ without rendering judgment in this regard is disciplinary condemnation.

Rendering Acquittal verdict of disciplinary defendant judge based on his defenses inserted in judgment No. 592 dated Mar. 9, 2004 in branch… of Judges’ Disciplinary High Court.

Judgment No 208 dated Sept. 20, 2006, drawn up by branch …of Judges’ Disciplinary High Court regarding nullifying of suspension of prosecution of Judges’ Disciplinary Public Prosecutor’s Office

 Disciplinary violation for introducing the accused, whom writ of arrest should be issued for him, to the police department instead of his introducing to the prison and non-expression of opinion, by confirmation or negation, regarding the other accusation of the accused in judgment No. 251 dated Sept. 20, 2006, drawn up by branch…of Judges’ Disciplinary High Court.

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One Vote, One Experience

Hemophilia   (Forth Part)

Third part of summary of the penal case extracted from minutes of the penal court

In the fifth volume of penal case, Mr. Dr. Kh. in the reply of question of the chief justice on Feb. 18, 1999 stated that: “There was no virus removal system, but the plasma of all the plasma givers were tested by the best diagnostic kits… “ so the claims of the patients were confirmed in court repeatedly. Mr. Dr. Sh., in page 4 of his same day’s declarations in the court, mentioned an important point that was denied by the directors of the blood transfusion organization for many times. He said that: “It shall be mentioned that after establishment of blood transfusion organization, the imported blood products have been tested regarding security by this organization due to possibility and legitimacy.” Mr. Dr. L. in his declarations stated that: “… But the main point is that accompanying the new refinery, there was no production technology of preparation with high quality and virus removal because there was no enough budget for renting it.” These declarations had conformity with the complainants declarations about the fact that blood transfusion organization had no virus removal technology and clarified that existence of a heat oven could not be considered as virus removal equipment and its technology.

The chief justice of that time, Mr. F., wrote a letter to the Minister of Health and Medical Education consisting of the principal following questions:

“1- From when the blood transfusion organization has endeavored to prepare and produce factors 8 and 9?

2- With respect to the fact that production license should be received from that ministry for production of all the produced medicines: has the organization received the product producing license for producing factors 8 and 9 or not?         

3- What has been the reason for discontinuance of above mentioned factors? When the production has been cut? From when the factors 8 and 9 should be virus removed? Based on which reasons, this subject is resulted? In case, the virus removing is necessary for production of the said factors, what is the reason for non-prevention of the activity in the said factors production before Oct. 13,1997? Why it has not prevented from it?    

4- Regarding import of factors 8 and 9 from the foreign companies (Pasteur, Meriv, Immuno Austria, Osklav, Italy and …) since 1984, have these factors been contaminated to HIV, HCV, HBS, … or not?”

Attorney of one of the patients stated in his defense: “some of the patients referred to a governmental institution to receive medicine for treatment but they affected by disease more. The responsibility should be undertaken by the organization. This case is an evidence of Article 206 of Law.” At last the court writ of expert opinion was issued. This writ bound the ministry of health and blood transfusion organization to the cooperation with the court selected experts…. Based on the process which was described and by virtue of the available set forth evidences in case No. 350/76 in relation with the two parts of the case, the judgment No. 379 dated Dec. 3, 2001 was rendered. End of third part and completion of summary of the penal case No. 350/76.

Next, the final part of verdict of the Court of First Instance and opinion of branch 20 of Supreme Court in relation with the penal case was inserted. Then, writs of expertise and referring the cases to the forensic medicine organization were explained and the opinion of the forensic medicine organization and its next amendments (extracted from judgment 1052-78) were mentioned. At the end, the court confirmed its verdict regarding the financial losses of the plaintiffs, with the expertise opinion of the forensic medicine organization inserted in the judgments 1052-78 that also relied on in this verdict.  

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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:

375- The city Public Prosecutor’s Office is investigating a crime which is in competence of the Center Public Prosecutor’s Office and by a bill of indictment, the case is referred to the Penal Public Court of the city and the said court, by announcement of the competence of the Center Penal Public Court, sends the case to the said authority, can the mentioned authority investigate the case based on the bill of indictment of the city public prosecutor’s office?

Opinion of Unanimity of votes of members of the current commission in the session dated Feb. 29,2007  

By virtue of Article 3, amended, of law for establishment of public and revolutionary courts approved on Oct. 20, 2002 of Islamic Consultative Assembly and article 14 of the by-law of the said law in the judicial area of each city, one public prosecutor’s office should be established as well as the courts of that area and it undertakes the duties up to date of approval of the relevant procedural law as per procedural law of public and revolutionary courts in the penal affairs approved on Sept. 19, 1999 of legal and judicial commission of the Islamic Consultative Assembly and the inserted regulations in this law. According to the above cases, in reply to the set forth question, it shall be said the principal is investigation of the crime location unless the law has made it exceptional. For example, in the flagrant crimes and the crimes related to the authorities, subject to Article 23 of criminal procedure code and its note, manner of measure of non-competent judicial authority has been become specified, also the cases which are subject to articles 51, 52 and 53 of the said law, will be quality of measure of this judicial authority as per the mentioned texts, so, first of all, the question is not subject to any of the above cases, second, the center court cannot investigate the bill of indictment of the public prosecutor’s office that its investigation is within competence of the center public prosecutor’s office and in case of investigation, it is not clear that which city public prosecutor or representative of the public prosecutor should defend the bill of indictment? Therefore, the center court should send the case for the legal measures to the center public prosecutor’s office so that this public prosecutor’s office sends it to the center penal court by a new bill of indictment or by confirmation of the issued bill of indictment from the city public prosecutor’s office.     

376- A Branch judge (of a court or public prosecutor’s office) finds forging his signature and branch seal by the said accused person in the process of investigation of the accused accusation regarding the fraud, while complaining against him, about continuation of investigation in accusation of fraud as per Clause (H) from Article 46 of Procedural Law of Public & Revolutionary Courts in the Penal Affairs, issues writ of denial of justice, does have the issued writ legal esteem?       

Opinion of votes of members of the current commission in the session dated Feb. 29,2007  

Unanimity of Votes: Since the issue is subject to Clause (H) of Article 46 of Criminal Procedure Code, so this judge cannot take measure concerning the investigation continuation of the fraud misdemeanor about the accused person rather he should issue writ of denial of justice because his signature forging by the said accused has caused a loss to his judicial prestige and made intangible damage to him, now that he complains against the accused, he is a complainant and beneficiary, so even if we believe that this judge can investigate the case, as his numerous accusations should be investigated jointly, so regarding the forgery misdemeanor which its announcer and complainant is the said judge, there is no doubt that this misdemeanor is considered proved by this judge, therefore continuation of investigation by him will be inconsistent with the judicial justice and neutrality doctrine of the judge, so issuance of writ of denial of justice is prior.  

377- If someone does not have the conditions to receive the license, but is succeeded to receive the said license in lieu of payment of an amount to the competent authority, are the received documents forged? Otherwise, under which penal title, the said authority and the receiver of the said documents will be prosecutable?

Opinion of votes of members of the current commission in the session dated Feb. 29,2007  

Majority: With respect to the definition of the forgery and quality of forming the physical element of it inserted in Article 523 of Islamic Penal Law and regarding the fact that even though the question subject is forged but as it has been issued by a competent authority, so is subject to one of the special articles such as articles 539, 540 and 725 of the said law so it is not subject to the physical or contents forgery but as an amount has been paid for receiving the said license, the payer as brier and the collector of the amount as bribe-taker will be prosecutable. In the meantime, as taking this license has not been legal, therefore it is not valid.   

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Article

Investigation Procedure of Debt Exceptions in Iran and Comparative Laws 

Reza Shahhosseini – Chief Justice of Branch 2 of Varamin Court of Law

Second Part

In this part, we read:

Part Three – Manner of investigation of the parties dispute in determination of the debt exceptions in the several stages of the executive operations

Chapter One – Manner of investigation of the parties dispute about the debt exceptions in the judicial authority in the several stages of the executive operations

Clause One – Iran Law

A-The stage before the attachment of property

B-The stage after the attachment of property and before the bid

C- The stage after the bid

First – Objection of the judgment debtor after the bid and before confirmation of the validity of the bid process

Second – Objection of the judgment debtor after the bid and after confirmation of the validity of the bid process

Clause Two – Comparative Law

A- Syria Law

B-Iraq Law

C-America Law

Chapter Two- Non-Judicial Authorities

Clause One – Registration Department

Clause Two – Finance Department

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Letter of Intent

Dr.kashani  (Third Part)

Generally after signing letter of intent, there are disputes between the parties and the commitments accepted by each of the purchaser and seller are breached…

So regulations of civil law about sale contract are useless for the letter of intent and letters of intent should be subject to the general rules of the contracts. In this regard, we have two legal rules which establish equilibrium between seller and purchaser rights and this is the same justice observing by the judges that is, rights of the seller and purchaser are not infringed but our laws in this regard are still insufficient and we shall solve the cases through interpretation because the judge can interpret in cases of silence of law. In this regard, two solutions are set forth in the laws of the European countries. One of them is objection of non-performance of commitment and the other is right to cancel...

But in Iran law, in the civil law, there is no text regarding objection of non- performance of commitment… but it is better to rely on Article 219 of Civil Law in this regard…

So we consider the letter of intent as contract in framework of general rules of he contracts and use the mechanism of objection of non-performance of commitment…therefore we should separate these types of actions completely in the Iran Law such as laws of Germany, France and Swiss.  When objection of non-performance of commitment is accepted, it will be planning of cancellation of the contract.   

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Timesharing

Saeed shariati

The Judiciary Jural Research Center

Third Part

In this issue we set forth the proofs of the provisional ownership possibility and legitimacy. Two proofs are mentioned in this regard. In the second proof, some cases of legitimacy of the provisional ownership are inserted as follows:

A- Endowment, B- Substitute of the wasted property, – C- Special cases of nominate contracts , D- Right of lien, E- Leas as a type of giving possession

Second Part: Place of Timesharing in the innominate contracts

First Chapter: Mentioning fundamentals of doctrine of freedom of the will in jurisprudence (a summary discussion about validity of innominate contracts)

1- Insurance Contracts, 2- Division

Second Chapter: Organs and Effects of Timesharing contract

A- Organs and specifications of timesharing contract, it consist of 4 cases. B- Judgments and effects of the contract: 1- Relation of ownership with each other, 2- Scope of powers of the owners

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Thesis

Doctrine of a Penal Matter Adjudged in Civil Action

Prepared by: Patoul Ahani

First Part

Part One –

Fundamentals of Doctrine

Chapter One – Explanation of the rule based on the Fundamentals of Laws

A- Non-related Texts

The Issue Setting Forth & Criticizing

B- Suspension of Civil Action

The Issue Setting Forth

Logic Viewpoint

Result

C) General Rule of a Matter Adjudged

The Issue Setting Forth

Unity of Subject

Unity of Cause

Condition for the Individuals Unity

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A Selection of World Legal News

1- German prosecutor rejects war crimes complaint against Rumsfeld.

2- Berlusconi acquitted of bribery charges

3- US soldiers indicted in death of Spanish journalist in Iraq

4-ABA condemns proposed DOJ restrictions on Guantanamo lawyers

5- China unveils new anti-corruption rules for civil servants

6- UK court cites torture fear in ordering release of Libyans slated for deportation

7-  New UK justice ministry may be established over judges’ objections

8- Executions down worldwide in 2006: Amnesty report

9-Israel nuclear whistleblower convicted of violating terms of release

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Foreign Part

Supervision Report of Human Rights Observance Quality in the Countries of Latin America (Period: Aug. 2005)

Prepared by: Division of Foreign Supervision on Human Rights Observance – Latin America Section

Second Part

In this part the article, the changes of the human rights in the South America Area have been studied.

In this regard the following countries have been researched:

- Colombia, - Venezuela, - Argentina, - Chili, - Bolivia, - Ecuador, - Paraguay, - Brazil      

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Speech

New Values & Changes of Civil Liability

Naser Katouzian, Ph.D.

None of the fields of law is changing same as the civil liability. Contracts and family laws are comparatively silent, but the damages resulted from atomic installations and air pollution and manufacturing the defective goods etc. are new issues inserted in the civil liability and make a new appearance for this branch. But the courts do not consider to the rules of civil liability law and doubt about their validity. For example, in this law, there are rules by which the court can mitigate the damage in some cases but their effects are appeared in the verdicts of the courts less.

1-Damage Justly Distribution

2-Tendency in Interest and Policy

3- Expansion of the Mere Liability

4- Reliance on Support of the Respectable Rights

5-Expansion of the Liability Insurances

6- Negligence in Discrimination of Causality Relationship

Result