Editor in Chief’s Note


The Editor in Chief’s Note in this issue has been allocated to speech of Mr. Avaei, Head of Justice Administration, in the Justice and Judicial Development Gathering.
At the gathering he announced that the main task of the jurists especially the judges is leading the laws towards justice.
In the meantime he mentioned the initiatives during the presidentship of the Chief of the Judiciary including dejuridication, decarceration, rights of citizenship, promotion of knowledge and education level, using the world successful experiences, the international Islamic jurisprudence project, judicial consultation project of human rights center, direct visit with the people, reorganization of different prisons under the single management of the Prisons Organizations, using modern technologies, knowledge-based campaign against economic corruptions, judicial council of the provinces, public treasury support council, judicial prevention and health, courageous revival of the public prosecutor’s office and establishment of specialized courts.
Finally 7 important steps taken in the justice administration of Tehran province have been mentioned.

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A Selection of Latest Legal Approvals

Law for Amendment of Some Articles of the Civil Law
Law for Extension of the Period for Experimental Execution of Public & Revolutionary Courts Procedure in Criminal Affairs 1999
Verdict No. 805 of General Board of Administrative Justice Court regarding Objection to Verdict of Land Reforms Council
Single Article for «Exclusion of Decisions and Verdicts Issued by the Specialized Boards and Committees of Ministry of Science, Research and Technology, Ministry of Health and Medical Education and Other Educational and Research Centers Regarding Scientific, Educational and Research Affairs from jurisdiction of Administrative Justice Court and Other Judicial Authorities
Verdict No. 835 of General Board of Administrative Justice Court Concerning Objection to Verdict of the Commission of Article 77 of Municipality Law
Verdict No. 841 of General Board of Administrative Justice Court Regarding Nullification of some Sections of Bylaw for Legal Bill of Independence of Bar Association 1955
Verdict No. 845 of General Board of Administrative Justice Court: Complaint of Borzouyeh Medical Group Affiliated to Bonyad-e-Mostazafan cannot be heard at the Administrative Justice Court.
Verdict No. 851 of General Board of Administrative Justice Court Concerning the Competence of Administrative Justice Court for Investigation of Complaints against Governmental Divisions Measures in taking over the People’s Lands
Some Points about the State Budget Law 2009
Executive Bylaw for Law of State Inspectorate General Organization Establishment in 1981 and its Next Amendments
Dispute Settlement Councils Bylaw

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Disciplinary Warnings

Issuing a writ of security and then introducing the accused to the police station (for one week) instead of introducing him/her to the prison is a disciplinary violation and contrary to statutory regulations.
The order of the Judge in agreement with applying Article 2 of The Law for the Manner of Financial Convictions Execution is not explicit in imprisonment because this article includes different options.
Disciplinary violation about failure and omission
Disciplinary condemnation due to non-holding the court session on the appointed time and not-considering Clause «V» of Article 46 of Criminal Procedure Code
Disciplinary condemnation of assistant to the public prosecutor investigating the case due to his negligence (resulting in escape of the accused for non-observance of Articles 127 and 132 of Criminal Procedure Code
To send the accused to the police station for not affording to redeem the security despite of lack of local jurisdiction

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One Vote, One Experience

Intervention of the Supreme Court as a supervisor in sound execution of laws concerning one who was prosecuted and convicted once for writing bad check, while in another case, the court considered the same bad checks as the means of fraud, so he was convicted to fraud: One of the judgments was by default and another was final after which by intervention of the Supreme Court, the problem was solved.

Reply to One Vote, One Experience of the Last Issue
Dear Editor-in-Chief & Director in Charge of Ghezavat Magazine,
Concerning the holding of Branch No. 16 of Supreme Court, cited in «one vote, one experience» at Ghezavat Magazine No. 54, please insert the following points at Ghezavat Magazine for information of the respected:
1-The ruling of a Branch of Supreme Court concerning a special case, is not of the instances of Article 270 of Criminal Procedure Code and will not be binding for branches of the Supreme Court and other courts.
2-During recent years, some of the narcotics with new names such as Crack are used and sold, the tests of which have showed that they are the very Heroin and are sold and taken in more pure and compressed form. So the fabricated names of discovered narcotics are not criterion for determination of competence of the courts rather they should be tested as per Note of Article 1 of the Law for Amendment of Narcotics Control Law of the Expediency Council 1997 and Clause 1 of Circular Letter of Chief of the Judiciary and if they are recognized as instances of narcotics subject to the mentioned note, they shall be investigated as per Clause 5 of Article 5 of the Law for Amendment of Establishment of Public and Revolutionary Courts Law and The Law for Amendment of Narcotics Control Law in the Islamic Revolutionary Courts.
Nadali Omi – Assistant Prosecutor of the Public Prosecutor’s Office at the Supreme Court

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Around
the Table

The following questions were discussed in the round table, the commission’s majority or unanimity of votes is as follows:

407- According to Article 270 of Criminal Procedure Code, can the precedent verdicts of the General Board of the Supreme Court be changed? If they are ambiguous, can they be interpreted or their ambiguity be removed? If yes, which is the authority for the interpretation or removal of ambiguity?

Opinion of unanimity of the members’ votes in the session dated July 3, 2008
Article 271 of Criminal Procedure Code (new), implies that the general board of Supreme Court does not have right of revision and changing precedent verdicts awarded before. Since the function of this board is correct interpretation of the law(s) in order to make precedent for the judicial authorities in the cases that branches of the courts or branches of the Supreme Court have different inferences regarding similar cases including legal or criminal and probate matters.
As per the above matters, if a precedent verdict includes ambiguity, since the general board of the Supreme Court has authority to award it, certainly remove its ambiguity and the subject can be put forward with the head of the Supreme Court so that a decision will be presented by its setting forth in the general board provided that the clarification is as per the law which is the subject of dispute of the precedent verdict and its result is not changed.

408- How will the return of another’s property be materialized in case the purchaser and the owner both complain or if just one of them is the complainant?

Opinion of unanimity of the members’ votes in the session dated Oct. 30, 2008
There are three presumptions for the mentioned question:
First – The purchaser and the owner are both complainants. In this case if handing another’s property is proved, the accused is punished by virtue of Article 1 of Law for Aggravation of Penalty of Perpetrators of Bribery and Embezzlement and Fraud 1988 and is ordered to return the property, so the property sold is returned to its owner and the money, acquired by fraud, to the purchaser.
Second – The purchaser is complainant. In this case the accused is punished and is ordered to return the property as per the mentioned Article so the money, gained by fraud is returned to the purchaser and the property, subject of fraud, is determined by the court as per Article 10 of Islamic Criminal Law because its owner has not complained.
Third – The Property owner is complainant. In this case the accused is sentenced by virtue of Article 1 of Law for Aggravation of Penalty of Perpetrators of Bribery and Embezzlement and Fraud 1988 and is convicted to return the property to its rightful owner. The property is returned to its owner (complainant) and as the purchaser has not complained, he can demand the return of price and the incurred losses through the civil courts.
Note: In all the mentioned presumptions, if the property sold is immovable and is transferred to the purchaser and the others by forgery of the documents through an official deed and there may be constructed any building, execution for return of such a property is not rather its owner can demand for the forged documents to be declared null and void and dispossession of the occupant(s) and eradicating of the building through civil courts.

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Selection of World Legal News

1-New German cybercrime law threatens IT industry.
2-Captured Congo rebel leader faces uncertain legal fate after Rwanda arrest.
3-China orders prison review in response to inmate deaths
4-Hundreds of Pa. juvenile convictions reversed.
5-France to accept one Guantanamo detainee.

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Foreign Part

Compromise Outside the Court
A Brief Study of Dispute Settlement Methods in Austria

Last Part
Social Work Department of Vienna Juveniles Court is an independent services center established 80 years before and is directly supervised by Ministry of Justice of Austria. This center has had different duties during many years, which have been provided for Juveniles Courts Law 1988 and have been changed or reformed as per the sprit of the time. The center is managed by a psychologist lady.
To receive precise information of the teenagers and youth and their family status, some talks are made by related people and parents and their guardian. Also social workers of juveniles and family departments or other custody institutes are touched. After negotiation with representatives of Ministry of Justice of Austria, social work dept. of Juvenile Court of Vienna has prepared a detailed list of the institutes which are at the service of the court, judges and public prosecutors being completed or amended constantly.
Group Work – During the group work sessions lasting for several weeks, it is tried that the teenagers get acquainted with group and social behavior and react so that they can lean to deal with the issues without use of force.
Supervision on the prisoners’ status of public prosecutor’s office and justice administration (Juvenile Court) of Vienna is of the duties of social work department of Vienna Juvenile Court. After collecting information by the social worker or psychologist and presentation of the report to court, the juveniles are visited continuously once a week or more. According to the Juvenile Courts Law, the department colleagues can assist the delinquent juvenile in criminal cases as attorney at the local courts.
In the meantime, their psychologists draw up psychological opinion at the request of the court and public prosecutor’s office.
One of the duties of the department which has been developing is to act in the cases related to the guardianship.
Association for Probation & Social Work (APSW) – The legislator has empowered the APSW which is a private organization with duties of public aspects: presentation of services at the probation period is of its duties which is prescribed by probation period services law 1969. It has participated in other duties in addition to supervision on delinquents and support of them during its 40 years of activity.
-Compromise outside the court in the delinquent cases and adults
-Supervision centers for the former prisoners
-Social training services: social workers help the former criminals to find a residence and a job and present some plans for their leisure. Also they present necessary recommendations for those who have addiction problems.

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The Month’s Guest

Lecture of Mr. Ashouri, Ph.D.
European Court of human rights just as Iran and some other countries has faced with accumulation of judicial cases. By the end of the Second World War, the politicians and jurists decided to establish a common institution to prevent probable future hostilities.
Then in 1949, the European Council was established by virtue of London Treaty.
For the time being, this Council has 47 members: almost all of the European countries. European Council is an international organization which has legal identity in Public International Law. Its goals are as follows: Activity in Cultural, economic and social fields and especially support of human rights and strengthening democracy and taking measures for provision of a European Constitutional Law.
The council’s language is English and French and because of the importance of human rights from viewpoint of European countries, a convention was founded under title of Support of Individual’s Rights and Freedoms in 1950.
This convention became enforceable in 1953 and the Court began its work from 1959. In 1989 the European Council decided to expand and include Eastern European countries and in 1990 the European Commission expanded through legal rules for establishment of democratic institutions in Soviet and the countries were notified to coordinate the judicial and police systems with EU so that they can be member of EU (27 members) not European Council (47 members).
Turkey is a member of the European Council so the actions against it are heard. The European Council signed support of the human rights in 1950 and the Court’s activity began in 1959. This convention has 59 articles and 14 protocols.

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Article

Governments Judicial Immunity and Their Property
Azim Sohrabi – Assistant Prosecutor of Public Prosecutor’s Office, District 18
Last Part
Subject Four – Ownership, Taking Possession and Benefiting from Properties
Clause One – Immovables
Clause Two- Taking Possession of Properties without Consideration
Clause Three – Governmental Supervision in the Properties Given in Trust
Subject Five – Intellectual & Industrial Property
Clause One – Definition & Scope of Intellectual & Industrial Properties
Clause Two- Conditions of Applying the Rules Related to Intellectual & Industrial Properties
Subject Six – Participation in the Collective Institutions & Companies
Clause One – Conditions of Applying the Rule Related to Collective Institutions & Companies
Clause Two- Optionality of the Rule of Judicial Non-Immunity Related to Collective Institution or Company
Subject Seven – The Ships Owned or Run by the Government
Clause One – Fundamentals of Applying the Competence
Clause Two – Status of Warships
Clause Three – Carrying Goods by Government Ships
Subject Eight – Arbitration Agreement
Section Five – Governmental Immunity against Limiting Policies Related to Court Proceedings
Subject One – Effect of Consent to the Competence of Applying Limiting Policies
Subject Two – Immunity of Limiting Policies concerning Certain Kinds of Properties
Section Five – Miscellaneous Regulations
Subject One – Serving Judicial Papers
Subject Two – Judgment by Default
Subject Three – Privileges & Immunities during Proceedings

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Article

Crime Analysis
Presenting Plan & Secrets Related to State Domestic or Foreign Policy to Incompetent People
1.Mohammad Jafar Habibzadeh
2.Mahdi Houshyar

Last Part

Conclusion:
1-According to the lack of a legal definition of espionage and rendering different viewpoints in this regard, considering two subjective and objective theories and the fact that according to the subjective theory, the scope of this crime is very wide and has no conformity with the general principles of criminal law such as necessity of strict interpretation of the wording of criminal laws; by acceptance of the objective theory, we believe that interpretation of the wording of criminal laws requires that we consider the perpetrator of this crime as responsible merely while he collects the information and submits them to the unauthorized people. In other words, the criminal conduct in this crime is complex and in case of committing both parts of the criminal conduct (collection and submitting the information), the crime is materialized.
2-The mentioned crime is a strict liability offense concerning the criminal result and the mere committing of the criminal conduct (collection and submitting the information) causes the crime to be completed.
3-Concerning the mens rea, the offender has intention to commit criminal conduct that is giving information to the unauthorized people or informing the unauthorized people of the mentioned information (basic malice), and must be aware and deliberate in committing the crime. Therefore the crime is completed when the perpetrator knows the fact that the documents and decisions of the state domestic or foreign policy are confidential and also he knows the lack of authority of the people who receive the information.

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Article

An Analysis on Applying Article 612 of Islamic Criminal Law

Ahmad Mozaffaro, Associate Justice of Tehran Province Criminal Court

This article sets forth the manner of investigation of general aspect of murder in case of remission of heirs of the victim after rendering the retaliation judgment.

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Article

Cyber Crime, Transnational Crime
Mohammadreza Zandi, Ph.D.

The meaning of criminal career indicates a sense of dependence or persistence of some offenders (if not all of them) in committing the crime. Despite of this fact, although criminal professionalism is very dangerous, but it is different from criminal organization which is the specification of a more dangerous type of criminality. Criminal organization, as a complicated phenomenon, following transnationality of crime, has been created as product of modernism and globalization and brings a special form of criminality.
This article tries to consider cyber crime as a transnational crime concerning the problem of investigation and discovery of cyber crimes, due to the fact that the internet is unlimited and without frontier, and mentions the UN measures and recommendations for universal coordination in confrontation with these crimes.