Editor in Chief’s Note

Dear Attorney General
Respectfully, this is to inform that the Division for Collection of Judgments in Education Department of Justice Administration of Tehran Province has come across conflicting decisions in different subjects during study and selection of the holdings:
- Hearing a claim for binding one to draw up a deed to transfer a mortgaged property
■ Necessity of issuance of previous written notice from a health director in a health infringement
■ Judicial affirming a donation in an ordinary document
■ Legality of claim for damages in excess of blood money
■ Possibility of appeal against a writ of abandonment of prosecution
■ Criminality of measures of a joint estate partner in sale of his part of property
■ Different inferences of The Tenant and The Landlord Act 1997: if a contact of lease is not signed by two witnesses, the legal relations of the parties are subject to The Tenant and the Landlord Act 1977 or The Tenant and The Landlord Act 1997
■ Jurisdiction of Public Courts in hearing disputes of the governmental organizations in contracts with an arbitration clause.
■ Necessity of submission of a claim for damages for returning the property obtained from the crime of breach of trust
■ Possibility of appeal against holdings for smuggling goods and foreign currency
■ Possibility of appeal against the court’s decisions in objection of a third party to enforcement process
■ Are fracture of tibia and fibula bones, considered as one fracture and only one blood money is payable or does each one have separate blood money?
■ Possibility of appeal against the court decisions during the execution of judgment
■ Possibility of rendering judgment to deliver the property sold by an ordinary document
■ Implicit abolishment of The Law for Amendment of Law for Prevention of Forcible Occupation 1973
■ Legality of rendering a judgment for eviction of the tenant due to unauthorized change of occupation in case the breach related to the change is done by transferee.
■ Possibility of re-trial regarding restitution of procedure the writs issued from the court
■ Whether the lapse of time is applicable in an involuntary manslaughter caused by a driving accident
■ Possibility of appeal regarding the court’s decision for sale of a real estate held in common
■ Hearing an action for affirming the ownership of real estate on the basis of ordinary document without requesting the court to oblige one to draw up deed of transfer.
■ Necessity of ordering the return of property in offense of theft
Deputy in Education of Justice Administration of Tehran Province

A Selection of Latest Legal Approvals

■ Decisions of Executive Board of Legal Advisors, Attorneys and Experts Affairs of the Judiciary are objectionable. (Verdict of Administrative Justice Court - Gazette No. 18788 dated Sept. 1, 2009)
■ Sending copy of documents of the case to the Judiciary in case of request of heirs of a murdered person for execution of retaliation or limb defect (Gazette No. 18788 dated Sept. 1, 2009)
■ Articles of the Law for State Animal Husbandry Comprehensive System (Gazette No. 18784 dated Aug. 27, 2009)
■ Causing nuisance for Teacher’s House and Education Dept. by a government employee is not considered as an official violation. (Verdict of Administrative Justice Court - Gazette No. 18812 dated Sept. 30, 2009)
■ According to religious rules increasing marriage portion is not permitted after marriage and to consider the effects of marriage portion for it, is considered contrary to religious frameworks. (Verdict of Administrative Justice Court - Gazette No. 18809 dated Sept. 27, 2009)
■ Executive bylaw of The Law for Amendment of Article (18) of Law for Establishment of Public and Revolutionary Courts Jan. 14, 2007 (Gazette No. 18832 dated Oct. 25, 2009)


Disciplinary Warnings

in decisions of The Judges’ Disciplinary Courts & Public Prosecutor’s Office

■ Making the legal service of the sentence upon convicted inmate after serving the imprisonment
■ Disciplinary Violation of the commenting assistant prosecutor: agreement with the writ and a defective decision
■ Ordering a three-day detention of the chief clerk of justice administration is not of the instances of breach of the court.


One Vote
One Experience

Dismissal of the Action of Ashraf Pahlavi by Court of First Instance, Court of appeals and the Supreme Court in 1960



Around the Table

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

418- Is Note 3 of Article 5 of Law for Aggravation of Punishment of Bribery and Embezzlement and Fraud 1988 of the Expediency Council applicable by virtue of Clause 2 of Article 30 of Islamic Criminal Law?
Opinion of nearly the unanimity of the members in the session dated Mar. 12, 2009
Note 3 of Article 5 of Law for Aggravation of Punishment of Bribery and Embezzlement and Fraud 1988 of the Expediency Council can be applied in case the conditions inserted in it are materialized, that is the property, subject of embezzlement is returned before issuance of bill of indictment, in this case Clause 2 of Article 30 of Islamic Criminal Law will not prevent applying and execution of the mentioned note.

419- According to Article 17 of Legal Bill of Independence of the Bar Association, can the court, in the position of rendering judgment to supplementary punishment, suspend or prohibit attorney of his work?

Opinion of Majority of the members in the session dated Mar. 12, 2009
Hearing the disciplinary violation of the attorneys-at-law, according to their special occupation and position, is separate from the justice administration organization and the competent authority for investigation of their violations is the disciplinary court located at the bar, as per Article 17 of Legal Bill of Independence of the Bar Association because the prescription of the mentioned article remains in force and on the other hand it is a special rule, so the following public rule in Article 19 of Islamic Criminal Law cannot abolish the former particular one. Moreover the narrow interpretation rule of Criminal Laws demands applying Article 17 of the Legal Bill and negating the application of Article 19 of Islamic Criminal Law regarding the subject. Therefore, the criminal public courts of justice administration, in investigation of violations of an attorney and rendering judgment of conviction in the intentional crimes, cannot condemn the attorney as a supplementary or deterrent punishment to suspension or prohibition of the attorneyship even for a certain term.


Selection of World Legal News

■ ICC upholds charges against accused DRC rebel leader
■ Thailand court sentences political activist to 18 years for royal defamation
■ Spain judge indicts alleged Nazi guards
■ France ex-PM goes on trial for Sarkozy defamation
■ American soldier, criminal in Iraq, was convicted to life imprisonment.
■ Order of detention of Ex-President of Venezuela
■ INTERPOL ex-president pleads not guilty at South Africa corruption trial
■ Britannia Court: Torture evidence of Guantanamo suspected is to be published.



Foreign Part

Judicial Education in India
This is the third part of this article which is allotted to the following cases:
- The courses transferred by judicial education plans
- Non-university judicial supreme education
- Educational plan for judges of the province courts
1) Judicial authorities behavior methods in and outside the court
2) Civil legal procedure
3) Criminal legal procedure
4) Law of evidence
5) Administrative affairs
- Compiled law education for the judges of the province courts – Munsiffs recently appointed
- Chief Topics
1- Civil
2- Criminal
3- General


The Month’s Guest

129th Session of Commission
Lecture of Mr. Mir Mohammad Sadeghi, Ph.D.
The subject of this session is about money laundering. It is more than one year that we have jointed to the circle of countries holding money laundering law. What is the reason of criminology of money laundering and why there is considered a punishment for it? How can we confront money laundering? It is a new phenomenon from 1980s, in which such act was began to be criminalized. Based on five preconditions, money laundering can be punished and criminalized.
Crime is the great problem of human today. According to the statistics presented by the UN several years ago, crime annual growth is amounting to 5% and this can be compared with some of the other figures such as population growth which fewer. Therefore, the phenomenon and the problem is increasing and it is concluded that from among all the calamities that bother humanity in the last decades of 20th century, the most troubling problem is crime which is more important than calamities such as incurable diseases or environmental pollution and other issues. What is adding to the dimensions of the problem is two particulars of crime:
1- Being organized and that today we rarely encounter the individual criminality and the criminalities are organized.
2- Transnationality of the phenomenon of crime



Historical

This part is an interview with Ayatollah Mousavi Ardabili who was of the Revolution activists before victory of the movement and of the high-ranking authorities of the Regime after the Islamic Revolution.
There is an approval in the Judiciary for holding an exhibition to keep the Judiciary services during these 30 years and these services can be shown as far as possible. The first decade after the Revolution in all fields is very remarkable.
He states that: «After the Islamic Revolution, we dissolved the former Judiciary completely and elected some judges and appointed them again. Then we reviewed the judgments but they were not precise and the defects were not removed. Concerning establishment of the Revolutionary Court, we thought by that procedure and the available laws, the anti-revolution and cells accused could not be convicted and this was a new subject. So we decided another organization and order to be established. We invited the Revolutionary judges. But unfortunately despite of our opinion for having codified laws, it did not materialize and the general problems were due to lack of new codified laws.


Article 2

Legal Analysis of Several Awards of the Board of Arbitration

Mohaddeseh Fereidoun
Expert of Economic Law & Secretariat of Board of Arbitration

Violations occurred in the capital market are divided into three groups of crime, offense and dispute and by virtue of Stock Exchange Law of the Islamic Republic of Iran 2005, investigation of dispute of this part is within jurisdiction of Board of Arbitration.
According to Article 36 of Stock Exchange Law, disputes between agents, investment counselors, publishers, investors and other activists concerning their professional activities, in case do not lead to compromise in the related part, is investigated by Board of Arbitration. It should be mentioned that investigation in Board of Arbitration is compulsory, that is, its investigation is different from optional arbitration prescribed in the civil procedure.
Article 37 of Stock Exchange Law, regarding combination of the Board of Arbitration, reads: «The board of arbitration includes three members, one is elected by the Chief of the Judiciary from among the experienced judges and two from experts in the economic and financial fields by suggestion of the organization and confirmation of the council investigate the disputes. Chief of the Judiciary and the organization, each one elect alternate member by confirmation of council in addition to their principal members to act the absence of related principal member. Conditions of alternate member are same as principal member.
As per the note of the same article, presidency of the Board of Arbitration is undertaken by the representative of the Judiciary. Therefore, the principal or alternate member appointed by Chief of the Judiciary undertakes presidency of Board of Arbitration and the issues related to investigation of each case.
Investigation of the cases in the Board depends on failing the parties to the dispute to compromise in associations according to Article 36 of Stock Exchange Law. The association issues an incompatibility certificate after holding a session for dispute settlement and failing to achieve result and the certificate is one of the steps for setting forth the case in Board of Arbitration. Jurisdiction of Board of Arbitration is an inherent jurisdiction based on law and is separated from jurisdiction of the public courts despite of the fact that the latter are authorities of general jurisdiction. Hence, the writ of non-jurisdiction by the public court and refuses to hear the case is confirmed by the Supreme Court and the case is referred to Board of Arbitration. In the meantime, jurisdiction of the Board of Arbitration is a legal jurisdiction and the investigation is limited merely to the legal cases (disputes) and the claim is proved and damages are awarded to be paid. So it has no criminal or disciplinary jurisdiction.
According to the Note 5 of Article 37 of Stock Exchange Law, awards of the Board of Arbitration are final and binding on the parties and cannot be reviewed and their enforcement is undertaken by execution departments of state organization for registration of deeds and real estate.
After explanation about role and place of Board of Arbitration, two samples of the rendered verdicts by this authority about transaction of stocks made by one on behalf of another without the latter’s permit, and the analysis and study are mentioned based on legal rules.



Article

Fixing Broken Windows
Leila Dadkhodaei
Assistant Prosecutor of Public Prosecutor’s Office
Theory of fixing broken windows handles with the fact that the first disorder should be confronted and the first broken window should be fixed but it has not been explicitly mentioned that what we can do to prevent the first window to be broken.
And that means a campaign, the effect fighting against beggars and tramps will not remove the poverty, and as far as poverty exists, there are the problems resulted from it. Another important note that is ignored in the theory of broken windows, is attention to the role of crime as a safety valve and its positive function.
It should be mentioned that deviation and crime are not always necessarily negative. Sometimes, existence of disorder and abnormality, and in the higher level, crime, causes protection of society and guarantee for keeping the order and the main norms. So inevitably to keep a main and high value, the execution of law with lower value can be ignored and if by a small deviation and disorder, astray and perverted individuals are confronted, not only the ugliness of crime and deviation is removed, but also another higher value will not be felt in this classification from viewpoint of citizens to be bound in comparison with other values, rather it will make people dare to violate it. So priority in election and execution of law is of the most important issues in criminology and criminal policy.



Article

Study of Appeals against Awards of Narcotic-Related Crimes in Iran Criminal Law and its Comparison with France Criminal Law
Jahanbakhsh Hassanzadeh
Head of Islamic Revolution Court of City of Amol
Regarding appeal against the awards of narcotic-related crimes, since public prosecutor’s offices and revolutionary courts are subject to the general rules of Criminal Procedure, therefore all the writs issued in relation to narcotics can be reviewed within the framework of regulations of Criminal Procedure and Amendment Law for Law of Establishment of Public and Revolutionary Courts (Public Prosecutor’s Offices Revival Law). But regarding judgments, it should be admitted that by virtue of Article 32 of Amendment Law for Narcotics Control Law, the judgments rendered about narcotics are final and binding, except for execution sentences that are to be confirmed by Head of Supreme Court or Attorney-General. It should be mentioned that confirmation of death penalty by the above two authorities cannot be considered as revision, because this measure is not in conformity with any of the methods of objection to judgments, rather it is a legal obligation which is mentioned in Article 32 of the law and the court should act regarding this obligation. But in the Criminal Law of France about appeal of narcotics decisions including judgments and writs, it should be noted that they are subject to general rules of Criminal Procedure and can be re-heard such as the other crimes. Also Article 32 of the above-mentioned law has considered Attorney-General as the authority who should confirm the execution punishment, whereas public prosecutor is considered as a party to the suit and cannot render judgment. Therefore, Attorney-General cannot confirm the execution sentence and this is a defect of the legislator. So it is suggested that the legislator pays attention to the point and amends Narcotics Control Law. In the meantime, as to the finality of judgments of narcotics, concerning the principle of fair judgment and rights of the defendant, it is recommended that Narcotics Control Law is revised and amended and at least, punishments of life and long-term imprisonments and heavy fines be revised.



Article

The Survey of Divorce Incidence Factors in Divorce Applicants in Tehran

Divorce is among the most sorrowful and its social phenomena, the damages and problems are sustained by the spouses and their families before and after divorce and the effective factors of this phenomenon have been studied since a longtime ago. Unfortunately, numerous studies in our country show that divorce incidents are increasing. Divorce has many reasons and one only reason cannot be considered as a main reason of it. Divorce has many consequences that if we can prevent its factors and reasons, we can be free from the problematic consequences of divorce. According to the importance of the subject we have decided to study the main reasons of divorce so that an appropriate technique is considered for its decrease. This article has studied the factors causing divorce request in the divorce applicants in Family Courts of Tehran (Shahid Mahallati – Vanak) during 2006-2007. The sample group is inclusive of 300. The results have shown that the most important reasons of divorce are respectively incompatibility and misunderstanding, violence and sexual problems. The results show that divorce has different reasons and dimensions, the rate of which can be decreased by precise identification of its reason and necessary planning in these fields, specially with setting forth in the consulting sessions before marriage as well as necessity of informing spouses in specialized consultation during appearance of the problem.