Editor in Chief’s
Note
The editor in
chief’s note in this issue is allocated to the speech of Mr.
Javaheri, Deputy in Education of the Judiciary and Mr. Avaei, Head
of Justice Administration of Tehran in a session regarding exchange
of views and emphasis on double attention to the affairs of judicial
probationers.
In this session, first of all Mr. Javaheri delivered a speech. In a
part of his speech he stated that: “There are limitations from
different aspects concerning acceptance of the probationers but this
organization should transfer its experiences to the next generation.
Some programs have been drawn up and a bylaw has been approved about
training…. At last some individuals have been introduced to have
specially the notification of probationer supervision. Because some
of the probationers have reproved that we do not have desirable
cooperation with them. As training and preparation of manpower in
this system are needed and are the priority for it so we should have
another view to the judicial probationer. If we can transfer our
ideas and skills to them in fact we can preserve and insure those
ideas and thoughts. Therefore we have to clarify them issue of
difference of opinions and the fact that there is possibility of law
interpretation regarding right distinction with liberality….”
Then Mr. Avaei stated that: “You should teach the probationers moral
refinement and teach them not to dissimulate.” Next he emphasized
that: “You should suggest them bravery morale, independence morale,
discipline, good manner, politeness, humility, morale of quarrelling
oppression and attention to the people problems.” He continued that:
“One of the problems of the Judiciary is instability… What can
people do with the judge who judges with preferences…. Another
problem is danger of domination of others over the judges that is
the judge is as bailiff…No one can ask the judge to perform contrary
to the religious regulations and the law.” Then he said that: “We
are all grateful to the honored Leader, to Imam Khomeini and to the
Islamic System… We do not have to insult anyone. We should respect
all the people… If the Judiciary is a just and sincere power with
faith, these damaged confidences will be amended.”
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A Selection of Latest Legal Approvals
► Some points about state services management law
► Justice Administration bailiffs are entitled to perform the
assigned legal duties under directorship, supervision and education
of public prosecutor and other judicial authorities.
► Non-having plan of traffic department from the accident scene and
also non-having driving license will not cause non-obligation of
state treatment services insurance organization of payment of the
treatment charges of the injured persons.
► Law for punishment manner of the individuals who perform
unauthorized activities in audio visual affairs.
► Bylaw for personal status of Iran Zoroastrians, Tehran
Zoroastrians Association
► Condemnation of the accused of several crimes from different
grades, is in the court which is competent for investigation of the
most important crime.
► Circular Letter of commander of disciplinary force which announced
possible “the investigation of crime of owner(s) of the human
smugglers vehicles after expiry of 6 months from attachment date of
the vehicle used by the said accused persons”, is illegal.
► Amendment for justice administration experts fee tariff approved
on Aug. 14, 2005
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Disciplinary Warnings
►Judgment No. 117 to 120 dated June 16, 2004, drawn up by Branch …
of Judges’ Disciplinary High Court: “To entrust grantor taking to
police station and repeated and unnecessary invitations of the
complainant and returning the case without sum repeatedly to the
disciplinary authority and … is disciplinary violation.”
►“Opinion of Deputy of Judges’ Disciplinary Prosecutor’s Office
about disciplinary prosecution of the judge of defendant and then
suggestion of his prosecution suspension due to lack of disciplinary
condemnation and … in the following report.”
►Judgment No. 520 dated Jan. 16, 2005, drawn up by Judges’
Disciplinary Board of Appeals: “ Leniency in the disciplinary
punishment by its decreasing from six months of temporary dismissal
from the judicial service to deduction of tenth of salary for three
months.”
►Judgment No. 488 dated Jan. 9, 2005, drawn up by branch… of Judges’
Disciplinary High Court: “Interpreting verdict as verbal by
description of unreal communicating of notice of the defendant and
his non-appearing in the court session and non-sending bill is
disciplinary violation.”
►Judgment No. 484 to 486 dated Jan. 7, 2005, drawn up by branch …of
Judges’ Disciplinary High Court: “Determination of punishment more
than the least punishment prescribed in the law about the one who
requests for revision and … is disciplinary violation.”
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One Vote,
One Experience
Quash in quash
Branch 8 of Court of Appeals: by quashing verdict of Branch 218 of
Court of First Instance, the transaction subject of this action is
an unauthorized action. Verification Branch 4 of the High Court: by
quashing verdict of Branch 8 of Court of Appeals, the said
transaction is not an unauthorized action.
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Quash in quash
Branch 8 of Court of Appeals: by quashing verdict of Branch 218 of
Court of First Instance, the transaction subject of this action is
an unauthorized action. Verification Branch 4 of the High Court: by
quashing verdict of Branch 8 of Court of Appeals, the said
transaction is not an unauthorized action.
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Article
Dr. Seyed Mahmoud Kashani
Legal Techniques for Vacuum Compensation of Governing Regulations of
Public and Revolutionary Prosecutor’s Offices and Public
Expectations of the Public Prosecutor’s Offices Revival
Gholamali Sedghi, Director General of Organization & Planning of the
Judiciary
From the important motives of dissolution of the public and
revolutionary prosecutor’s offices (establishment of public and
revolutionary courts), was achieving to Islamic judgment. (With this
interpretation that as the public prosecutor judges are not
canonically judge, naturally direct referring to the judge is not
possible, acknowledgment before them is not valid. Even they are
prohibited from issuance of the orders that lead to attachment of
the property, that is writ of attachment of relief.) But is this
correct? Imam Khomeini stated documented subjects regarding
separation of duties of the judge and public prosecutor in part of
“Who is entitled for the judgment position?” in Velayate Faghih
Book. Summary of statements of the Imam is as follows: 1. To be
judge or public prosecutor are complementary of each other in
Islamic judgment. 2. To be judge or public prosecutor, both are a
rank of the ranks of the authority. 3. Canonical validity of both is
similar in their place…
Public Expectation of the public prosecutor’s office. Establishment
of public prosecutor’s office has been the first liberal endeavor in
control of measures of police and security systems and the
expectation is that status of the disciplinary systems is changed in
each judicial area after establishment of public prosecutor’s
office. The police as a public organization become apparent more.
The law is observed more. The power is under control of law not vice
versa…
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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:
386- Does the mere notification of the papers of proceedings time in
real form, with supposition of non-presence and non-submission of
statement, make the verdict verbal?
Opinion of unanimity of votes of the members of the current
commission in the session dated Aug. 2, 2007
By virtue of the provisions of article 303 of Civil Procedure Code
approved in 2000, the principal is the courts judgments after trial
unless the cases that are exception in the said article. With this
explanation, statement of defense submitted to the court, should
comprise the defendant’s defense regarding nature of the filed claim
therefore if this statement of defense is not regarding nature of
claim for example it is request of taking copy from the case papers,
the rendered judgment will be by default. The other point is that
the mere notification of the court time without notification of the
provisions of the plaintiff claim (non-attaching the second copy of
the petition and the addenda) cause that the defendant cannot defend
regarding the nature of claim. In this case the court judgment will
be by default.
But in the penal affairs, as per provisions of article 217 of
criminal procedure code approved in 1999, the crimes related to the
people’s rights and public order that have no aspect of what is due
God, whenever the accused or his attorney appears in no of the court
sessions or does not send statement, the court judgment will be by
default that is the mere notification of notice in the real manner
is not enough for the court judgment to be verbal.
387- What is the purpose of the legislator of the competent court in
Clause “N” of Article 3 of Law for Amendment of Public and
Revolutionary Courts Establishment Law approved in 2002? If the
purpose is the court that has the investigation competence of the
crime, how the regulations of this clause can be collected with the
regulations of Clause “T” of the same article?
Opinion of majority of votes of members of the current commission in
the session dated Aug. 2, 2007
Whereas in clause “N” of article 3, the competent court has been
mentioned but in clause “T” merely the public or revolutionary court
has become specified so as the competent court includes public
(penal) or revolutionary court and penal court of the province
therefore there is no contradiction between clause “N” and clause
“T” of the mentioned article therefore investigation of objection,
subject of clause “N”, in case investigation of the crime is in
competence of the province penal court is by this court otherwise
investigation of the objection will be by public (penal) or
revolutionary court.
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The Month’s Guest
Dr. Mehrpour,
According to Principal 4 of Constitutional Law, all the laws should
be based on the Islamic rules. The Principals 166 and 167 know the
rendered judgments extracted from the civil law and based on it.
But on the strength of Principal 4, some of the judges refuse the
law by their authority, but according to Article 3 of Civil
Procedure Code of 1994: “If a clergyman knows a law contrary to
jurisprudence and religious law, the judge cannot refuse its
execution and he should refer it to the other.”
Performance of laws contrary to the religious law is rejected based
on religious injunction of Imam Khomeini unless Guardian Council
confirms it.
Of course if we have valid law (codified) we do not refer to the
religious injunctions, and the judge should pronounce the judgment
as per the same laws.
International Treaties are approved by the competent authorities
(Islamic Consultative Assembly) – as far as they are not contrary to
the religious law- are higher than the ordinary laws and any law
cannot be ratified contrary to them. With this description, if a law
is passed contrary to them later, it is cancelled. The treaties have
approved before and any law has not passed officially contrary to
them and the guardian council jurists do not recognize them contrary
to the religious law, are legal.
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Article
How many judges should render judgment for
“Execution”?
Bahman Keshavarz – Attorney of Justice Administration
Criticism of two precedent verdicts
Agreement or disagreement with “execution punishment” is a worldwide
and constant discussion. The pro and con votes have proofs, each one
is discussable. But the reality is that this punishment is performed
at many of the world countries and these countries are not
necessarily underdeveloped and of the third world countries.
In our country, there is “Execution” in penal policy and discussion
about its existence or non-existence is not possible regarding
retaliation and Islamic punishment. But the executions predicted for
some of the crimes by the government by virtue of law can be
discussed. In 1997, amendment law for law of narcotics control was
approved by the expediency council. In this law, “execution”
punishment has been predicted for some of the perpetrator of the
crimes about it. Article 32 of the said law states that: “The
execution judgments rendered by virtue of this law, are final and
binding after confirmation of chief justice of the supreme court or
the public prosecutor general.” Also by virtue of clause 5 of
article 5 of law for establishment of public and revolutionary
courts, investigation of these crimes are in competence of the
revolutionary courts and we know – each court has only one judge in
the revolutionary courts and if the execution judgment is rendered,
the case is reviewed by the chief justice of the supreme court or
the public prosecutor general and in case of confirmation of each of
them the judgment is rendered. In 2003, a precedent verdict has been
issued by the general board of supreme court, that is from viewpoint
of the general board, judgment of amendment law for establishment of
public and revolutionary courts regarding “competence” can not be
generalized to the accused of the narcotics – whose their punishment
may be execution and manner of writing the said verdict is in the
form that makes its generalization doubt to the other competence
cases of the revolutionary court and may be the operations are in
this way. On the other hand, precedent verdict No. 703 dated July
31, 2007 of general board of supreme court, based on Article 21 of
amendment law for establishment of public and revolutionary courts
approved in 2002, declares that the authority for revision of the
revolutionary courts is court of appeals and that means that verdict
of the revolutionary court – is anything (even execution) will be
investigated merely by court of appeals – with three judges at the
revision stage. This collection makes a special status and our
subject is that.
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Article
Rule of Lo’s (Doubt Near to Certainty) &
Compurgation
41 Compurgation Comparative Points
Dr. Mohammadreza Zandi
Third Part
In the previous issues, 34 principal points were mentioned regarding
Rule of Lo’s and Compurgation; in this issue we complete it by
inserting other 7 points:
Point 35: Proving punishment (having maximum and minimum limits
determined by law and judge respectively) though compurgation
- Majority Opinion
- Minority Opinion
- Commission Opinion
Point 36: Judicial precedent & compurgation
36-1- Due to difficulty of doubt achievement, the case is not of the
Lo’s cases rather it is regarding claimant and denier
36-2- Disapproval of Lo’s due to contradiction in the declarations
and two doubts in the compurgation ceremonies
36-3- Non-attaining the relation of consanguineous relatives of some
of the ones who swore with the claimant
- Opinion of branch of the Court in quash of judgment
36-4 – Execution of compurgation ceremonies without appearance of
the accused
- Opinion of branch of the Court regarding the judgment
36-5 – Non-attaining the science of the ones who swore
- Opinion of the Court branch in quash of the judgment
36-6- Non-attaining the science of the ones who swore to murder
ascription to the murderer and lack of indirect evidence of doubt
regarding accusation of the accused
- Opinion of branch of the Court in quash of judgment
36-7- Non-attaining dispute between the accused and the murdered and
disapproval of the Lo’s due to existence of powerful contrary
evidences
Point 37: Non permit of oath repeating by the claimant of the
compurgation
Point 38: Contradiction of compurgation and confession
Point 39: Writ of suit stay in case of non-denial of oath by heirs
of the slain person to the accused
Point 40: Result
Point 41: Bisection in payment
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A Selection of World Legal News
1-U.S. Prison and Jail Population continues Meteoric Rise
2-Denmark rejects US request to take Guantanamo detainees
3-Israel frees 429 Palestinian detainees to bolster Support for
Abbas, peace talks
4-Myanmar has freed over 8,500 prisoners: state media
5-US Senate Judiciary chair urges independent judiciary for Pakistan
6-Witness who falsely testified at Rwandan genocide trial jailed by
UN tribunal
7-New Jersey Senate panel passes death penalty abolishment bill
8-Bangladesh jails professors for role in August anti-government
protests
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Miscellaneous
Quality of Calculation of Blood Money
Rls. value in 2007, according to Instruction No. 111/02/184 dated
Mar. 29, 2007 of the Judiciary has been increased and the full
amount of blood money has been changed from Rls. 262,500,000/- to
Rls. 350,000,000/-.
Based on this and for acceleration in calculation of Rls. value of
blood money amounts, object of judgment of justice administration
courts, Rls. value has been evaluated as per the table, which
inserted in this article |
