Editor in Chief’s Note


The Editor in Chief’s Note in this issue has been allocated to the executive plan of 2009.
-In 2008, the judiciary achieved many of its goals, the most important of which are as follows:
1-Looking into more than 17,000/- old cases
2- Execution of administrative automation plan and CMS in all judicial units
3- Concluding a contract and finalizing the cooperation with Payam-e-Nour University by Deputy in Education of Justice Administration of the Province for facilitating admission of students in Bachelor’s and Master’s Degrees
4- Continuation of regular inspection of police stations and prisons
5- Regular inspection, supervision and evaluation of judicial units and making report for the Head of Justice Administration
6- Training more than 2398 judges and employees
7- Making the sites of Ghavanin, Dadgostary and Ghezavat up to date
8- Electronic registration of finalized files
The Most important Purposes of Executive Plan in 2009 are divided into 8 Parts:
(The following titles have many subtitles):
1- Management
2- Standardization
3- Promotion of Judicial Decisions Quality
4- Satisfaction
5- Education & Research
6- Prison & Decreasing Criminal Population
7- Dispute Settlement Council
8- Supervision

A Selection of Latest Legal Approvals

Law for Canonical Supervision on Killing Animals and Fishing
Emphasis on Necessity of the Attorney’s Appearance in all the Cases that the Prescribed Legal Punishments is Life Imprisonment or Execution.
Application of Circular Letter No. 2/8091 of State Organization for Registration of Deeds and Real Estates that Negates Contractual Contract Cancellation Right by Contractual Employees and Their Exit from Service in that Organization, is Contrary to the Law and Regulations and Beyond the Scope of Powers of that Organization in Enacting of Governmental Regulations.
Circular Letters No. 87/65062 and No. 87/69769 of State Organization for Registration of Deeds and Real Estates that oblige the Notary Public Offices to Announce the Transaction Performance and Particulars of the Parties to the Transaction and Property to Ministry of Commerce, Is Beyond the Scope of Powers of the Mentioned Organization in Enacting Governmental Regulations.
Precedent Verdict No. 710 of General Board of Supreme Court Regarding Dispute Settlement Authority Between Interrogator and Public Prosecutor
Whereas Ministry of Justice Is Representative of the Government for Payment of Blood Money from Public Treasury and Supply of Budget, All the Related Claims of Insolvency Against Ministry of Justice are in Compliance with Domestic Jurisdiction and Other Legal Conditions.
Verdict No. 42 of General Board of Administrative Justice Court Regarding Non-Permit of Parking Using Change Unless in the Legal Exceptions
Objection of Head of the Islamic Consultative Assembly to Approvals of the Board of Ministers about Contradiction to the Law Is Enough for Its Annulment.
Construction of Residential Building in the Agricultural Lands Has No Permit Before Changing Their Application by the Legal Competent Authority.
Bylaw of Amendment of Executive Bylaw of Article 10 of Law for Establishment of Support Fund of Attorneys and Legal Assistants of Justice Administration
Emphasis on Restraint of Request Sending of Article 18 Applying Before Finality of Judgment


Disciplinary Warnings

Hearing the claim of intellectual forgery with respect to the fact that it has merely judicial nature: The court has to investigate it directly. Referring the case to the expert is a disciplinary violation.
Disciplinary violation due to canceling the executive measures without mentioning legal ground and not relying on a legal article.
Disciplinary violation due to not observing Article 257 of Code of Procedure of Public and Revolutionary Courts in Civil Affairs regarding appointment and change of official expert for performance of expertness affair.
Disciplinary violation due to leaving the accused in the air: the accused has not been sent to the prison because of inability of introducing a surety and not been released by introducing surety through issuing a writ of acceptance of bail.


One Vote
One Experience

In breach of trust, the complainant should have given a property or a deed to the trustee.
The claim that a written request has been made by the complaint to the owners to empower the accused to transfer the real estate to him is not of the instances of the definite of the offenses.


Around the Table

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

409- How the charge of announcing the conviction of the accused in the gazette should be collected according to Note 3 of Amendment Law for Note 1 of Article 188 of Procedural Law of Public and Revolutionary Courts in the Criminal Affairs 1999 and accession of three notes to it?

Opinion of Majority of the members’ votes in the session dated July 24, 2008
Execution of the contents of Note 3 of Amendment Law for Note 1 of Article 188 is an imperative prescription and the charge of publishing the final judgment should be undertaken by the convicted according to the legislator’s opinion, so in case the convicted refuses to pay the charge, it should be supplied by the Criminal Judgments Execution because the refusal of the convicted to pay cannot delay the execution of an imperative law. It is evident that the mentioned charge could subsequently be collected from the convicted.

410- Can the precedent verdict No. 706 dated Dec. 11, 2007 of the Supreme Court be extended to the public and criminal courts of the province too?

Opinion of Majority of the members’ votes in the session dated July 24, 2008
The competence of criminal courts of the province has been enumerated in the Note of Article 4 of Amendment Law for Law of Establishment of Public and Revolutionary Courts 2002 and these courts investigate the crimes within their competence based on Criminal Procedure Code Sept. 19, 1999 and now there is no wording in law to bind these courts to investigate the crimes within the competence of public criminal courts. The mentioned precedent verdict, subject of question, which has been issued on the basis of Article 197 of former Criminal Procedure Code (1911) is not applicable within competence of the courts because the latter Law has been abolished by virtue of Article 308 of Procedural Law of Public and Revolutionary Courts in Criminal Affairs Sept. 19, 1999, so the verdict is applicable merely in the courts-martial courts which investigate the crimes within their competence by virtue of Criminal Procedure Code (1911).

411- The victim’s kidney has been torn in a driving accident and the court has ordered blood-money to be paid for the injury. The judgment has been finalized and executed after which the injured kidney has loosed its efficiency completely and as a result he suffers a defect of limb. Since the punishment of the offender is different for simple physical injury and the injury resulting in a defect of limb and the amount of blood-money would be different too, how can the victim seek for compensation?

Opinion of Majority of the members’ votes in the session dated Aug. 28, 2008
The subject can be argued in the following presumptions:
1- If the judge has made a mistake; for example he rendered the judgment before receiving the final forensic medicine certificate and the ruling has become final and been executed. In this case, as the sentence is not appropriate with the offense, the complainant can request the court for rehearing by virtue of Clause 6 of Article 272 of Criminal Procedure Code or set forth his request of rehearing on the strength of Clauses 2 and 3 of Article 273 of the mentioned law through the attorney-general or the head of judicial area (now the public prosecutor).
2- If the judge has not made any mistake and the mentioned judgment has been finalized and executed and losing the kidney has subsequently become evident and the period for objection of the complainant prescribed in Note 5 of amended Article 18 of the Law of Establishment of Public and Revolutionary Courts Jan. 14, 2007 in censes of apparent contrariness with religious rules has been expired, then if the Chief of the Judiciary is informed of the mentioned judgment even after the period of three months and one month prescribed in Note 5 of amended Article 18 and considers it apparently contrary to the religious law, he can refer the case as one of the reasons of rehearing to the competent authority for further investigation.
Furthermore, if the judicial authorities included in Note 2 of amended Article 18 are informed of the matter in person or in another manner at any time, they have a duty to announce the case to the Chief of the Judiciary with observing the prescribed periods in Note 5 of amended Article 18 of Amended Law and the relevant Executive Bylaw and Instruction and after the confirmation of the Chief of the Judiciary, he can refer the case as one of the reasons of rehearing to the competent authority for further investigation.


Selection of World Legal News

1- Taiwan, China sign judicial cooperation pact.
2- Serbia war crimes court convicts ex-police of killing civilians in Kosovo war.
3- Bangladesh prosecutors to drop two corruption charges against PM.
4- Spain judge orders investigation of Israel role in 2002 Gaza bombing to continue.
5- Mass. high court to consider recorded jail calls.


Foreign Part


Warrant of «Albashir»; Breach of The Court Existential Nature

Professor of International Law of Unisa University of South Africa, Considers rendering warrant of International Criminal Court (I.C.C.) against Hassan Omar Albashir, Sudan President as breach of existential nature of this Court.
«Khaled Ghasimeh» said in this regard that: «Illegal execution of this warrant of attachment not only is breach of Legal Charter of U.N. and Article 1 of Rome Legal Charter but also cancellation of legality of the I.C.C. itself.
As he stated, consideration in resolution of 1539 of United Nations Security Council against Albashir shows that deed of this resolution is Article 7 of the United Nations Charter that this legal article has no indication of rendering warrant of legal prosecution against the entities.


The Month’s
Guest

Lecture of Mr. Mohaghegh Damad, Ph.D.

I studied the western countries regarding infertility whose laws have been drawn up carefully and regularly. For example, the problem and its details have been prescribed in 50 articles in England. In our country, a short five-article law has been drawn up and this has caused many problems for the Judiciary. Among the reasons is that some of these articles are contrary to other laws.
Fertilization of an infertile can be materialized in two ways:
1- Impregnating sperm in the womb of an infertile woman
2- Forming embryo from ovule of woman and man outside the womb and then transferring it to an infertile woman
The legislator has evaded the first way which is most practical and has proceeded with the second one. The Law has been approved under title of «Manner of Donating an Embryo to the Infertile Spouses» in 2003 and by virtue of Article 1 of the Law, all the specialized competent centers for treatment of infertility are permitted to operate for transfer of the embryos resulted from outside the womb impregnating of the legal and legitimate spouses after acceptance of the spouses, owner of embryo, to womb of the women after marriage and performance of the medical measures of whom, their infertility, each one or both are proved in compliance with religious rules and the conditions inserted in this law. In the law, common conditions have been prescribed for the spouses, grantors and grantees, and then particular conditions have been determined and recognition of these conditions has been left to the Judiciary.
This law has some problems:
1- Iranian Law, contrary to the laws of some other countries, has made no limitation for grantors of embryo or reproductive cells concerning their age, number of grantings, etc.
2- The legislator talks about the legitimate and legal spouses in compliance with the religious rules, but what is the meaning of the religious rules?
Then 4 ambiguities of the law have been discussed and the lecturer believes that the law is silent in two cases.
At the end, the jurists’ opinions have been set forth.


Article 1

Euthanasia: Mercy-Killing
Behrooz Javanmard
Ph.D. Candidate for criminal law and criminology in faculty of law at Shahid Beheshti University

Abstract:
The different opinions about Euthanasia necessarily depend on different opinions in the field of morals. The discussions about Euthanasia are discussions about “value”. Some believe that the life is the utmost of goodness and other goodness are meaningful only with the existence of life. There is no goodness and value without life (namely it can’t exist) and the life is a necessary term to fulfill other values.
The arguments in connection with “Euthanasia” are mainly the discussions about what can be considered moral? There are several fundamental questions which have been discussed. For example, is there any right for one to commit suicide? Is it moral that someone helps another one to commit suicide? Is there any right to facilitate the death of another according to his or her request or his or her family? Is it to rescue one we put an end to another’s life that there is no hope to be continued? All of the arguments about “Euthanasia” are to reply such questions. “Euthanasia” is an important subject in medical ethics because it contains all social and cultural scopes.
Key words:
Euthanasia, murder, compassionate, easy death, mercy killing


Article

Recognition & Enforcing Foreign Courts Judgments in Iran
Mansour Pournouri, Ph.D. – Department of Legal Research
The science of law promotes simultaneously with other sciences toward globalization and it has been able to help unifying the laws of society in different fields such as literary and artistic works rights, human rights, maritime law, economic and financial laws and criminal law, and move towards an international modern judicial system.
Facilitation of international commercial relations depends on uniform commercial laws as well as commercial and legal disputes settlements based on uniform laws. The role of jurists in different situations such as legislation, judgment, attorneyship and legal consulting is to accelerate the process of laws. One of the aspects of uniformity of laws, is to attempt in drawing up uniform laws for enforcing foreign decisions. Study of legal systems of different countries in this aspect and an attempt to solve the administrative problems which may be the fruit of world conferences are steps that will help in this way. Judicial precedent of enforcing the decision of foreign courts in Iran is an unknown subject for Iranian and foreign jurists. Any court can use a precedent different from another and defend it on the basis of its inferences. Judicial precedents in this regard are rare and has not found its position in comparison with other affairs. This may be due to the fact that requests for enforcing foreign judgments in Iran are very few. Undoubtedly if judicial precedent and the law for enforcing the decisions of foreign courts in Iran are analyzed and introduced, they bring confidence and trust of judicial systems of foreign countries on the judicial system in Iran.
The writer who is the president of the third branch of Tehran Public Courts and has ordered the several foreign courts judgments to be enforced in our country tries to describe the related laws and regulations based on judicial precedent.
To understand the situation of enforcing foreign judgments in Iran, it is necessary to have a summary look on the definite of the judicial system in Iran.


Article

Criminal Policy in Challenge with Infringment of Copyright

Javad Salehi,
Instructor of Law Department of Kerman Payam-e-Nour University,
Graduate of Master’s Degree of Criminal Law and Criminology in Tehran University

In Criminal Law, reaction to infringement of copyright is limited to punishment and preventive and rehabilitative measures; which is expressed through codification, approval and applying repressive tools by resorting to different institutions of criminal law, officially and by observing of special formalities against violators of copyright. The criminalization cycle is among the elements of criminal policy that can not form an ideal criminal policy by itself. The legislator should consider the cultural, social, political and economic conditions of the society in compilation of this manner of the criminal policy. Moreover the legislator should use the strategic principles inserted in international documents and experience of the other countries concerning the copyright, nevertheless the Iranian legislator has no special consideration to these cases in drawing up comprehensive and effective criminal policy against the infringement of copyright. It seems that the legislator encounters jural and religious about the basis of intellectual property in criminal support of copyright. Limitations resulted from state interests and jurisprudence cause the legislator to be unwilling to accede international documents in the field of copyright. In this article, it has been tried to deal with some of the ambiguities in concept and application of copyright and criminal policy.


Article 2

Judges Training
In direction of legal strategy and policy of the organization and better coordination between the state judicial departments and Iran Blood Transfusion Organization and for promotion of the specialized information level of the judges, the second course of judges training was held by Legal Office of the Organization with cooperation of Deputy in Education of Justice Administration of Tehran Province at Velayat Hall of Court of Appeals of Tehran Province in Aug. Duration of this course was four sessions in which the senior authorities of the organization explained the organization mission in preparation and supply of the healthy blood and its products.
The first session of the mentioned training was held by Mr. Pileh, Director of Legal Office of the Organization. He mentioned the organization’s goals and strategy in supply of health of their products and finally technical precision according to the last scientific developments and expertise opinion of judges to the technical subjects of the organization for issuing legal verdicts as per scientific and legal rules based on current international and national standards.
Then instructor of the session, Mr. Dr. Gharehbaghian, Assistant Professor and Deputy in Education and Research of the Organization mentioned history and goals of holding and duties of Blood Transfusion Organization as well as blood transfusion medicine, supply, preparation, transfusion, distribution and using blood and blood products.
In the second session, Ms. Dr. Amini, Assistant Professor and Technical and Quality Control Director stated subject of blood health and problems resulted from using blood and blood products.
In the third session of this course, Mr. Dr. Abolghasemi, Assistant Professor and Director General of the Organization talked about Iran Blood Transfusion Organization and confronting legal challenges, policies, techniques and international experiences.
It should be mentioned that 81 judges and associate justices of different branches of Courts of Appeals and Criminal Courts of Tehran appeared at the different sessions of this course.