The Criterion for the Detection of Possession Actions with the Analysis and Criticism of a Judgment
saleh
khedri
Ph.D in Private Law of Tehran University
author
text
article
2019
per
Illegal possession, nuisance and obstruction of right-of-way, also known in Iran jurisdiction as possession actions or triple actions, are among those lawsuits that have brought many cases to Iran courts. Legislative support for a criminal prosecution for these lawsuits on the one hand and the advantages of proceeding without due process and out of court litigation on the other hand encourages individuals to file such lawsuits. The basis of the law's support for these lawsuits is the maintenance of social order, and the requirements for recognizing these claims are Articles 159 to 160 of the Code of Civil Procedure. In this article, the elements and criteria for identifying these cases and their common rules are analyzed and criticized within the context of a judgment rendered by one of the Branches of the Public Prosecutor's Office and the Revolutionary Tribunal of Tehran, which illustrates how the judiciary inferred the status of each casee.
Judgment
مدیریت آموزش دادگستری استان تهران
1735-1227
19
v.
97
no.
2019
1
22
https://www.ghazavat.org/article_223558_096593bd6e70427b8b53b69ecbcb0fb9.pdf
Proof of the Actus Reus of Crimes Based on Expert Opinion
Atefeh
Abbasi
Assistant Professor of Imam Sadegh University
author
text
article
2019
per
The burden of proving the three elements constituting the crime, including the legal, actus reus and mens rea elements, along with the lack of barriers to the commission of the crime, is a matter for the prosecutor according to the relevant regulations and the general rule prescribing the burden of proof lies on the claimant. This includes proving criminal behavior such as its act or omission nature, attribution of the criminal act to the perpetrator, general and specific ill-will and knowledge and intention in deliberate crimes and criminal culpability in unintentional crimes, which actus reus can be substantiated by referring the matter to the expert. Although the Islamic Penal Code and the Code of Criminal Procedure do not order the judge's adherence to expert opinion and such opinion is recognized only as one of the scientific evidences for the judge, the judicial procedure approach to referring the case to experts to investigate the effects and consequences of the crime, whether electronic or medical, such as texting, fingerprints, semen, blood stains, saliva, etc., as well as examining the statements of witnesses, informants, plaintiffs and defendants, indicate the courts' attention and perhaps de facto adherence to scientific evidence (expert opinion) to substantiate the material element (actus reus) of the crime.
Judgment
مدیریت آموزش دادگستری استان تهران
1735-1227
19
v.
97
no.
2019
23
47
https://www.ghazavat.org/article_223561_9235adad09ee42eca47db7d69af5f4cb.pdf
Scope of Application of Article 9 of the Civil Code with Respect to the International Obligations of Iran
Vahid
Bazzar
Ph.D in International Law of Allameh Tabatabai University
author
text
article
2019
per
According to Article 9 of the Civil Code, the treaties made following the Constitution between Iran and other states shall have the force of law. Only international treaties, not other sources of creation of international obligation, including customary law, are considered under this article. The treaty must also be into force internationally and have exhausted the ratification process in Iran's legal system. The statute or constituent instrument of the international organizations also to which the Iranian is a member falls within the scope of Article 9. However, the treaties that Iran concludes with international organizations do not have that character. The same is concerning treaties whose provisions are binding on Iran by the specific requirements of international law. Although the Iranian judge had a duty to execute the international obligations of Iran as domestic law, this has not received much attention in the Iranian jurisprudence. However, the recent jurisprudence of Iranian courts including the Appeal Court of Mazandaran in invoking the international obligations of Iran could bold the potential of Article 9 and revitalize this provision in the Iranian jurisprudence.
Judgment
مدیریت آموزش دادگستری استان تهران
1735-1227
19
v.
97
no.
2019
49
67
https://www.ghazavat.org/article_223562_3ec030722fc9a0437045e12629cdb5eb.pdf
.A Historical-Analytical Reconsideration of the Reasons Behind the Defendant's Right to Counsel in Criminal Proceedings from the Procedural Rights Perspective
Mahmoud
Boulagh
Assistant Professor at Law and Political Science Faculty of Zahedan Branch of Islamic Azad University
author
Maziar
Khademi
Ph.D Student of Public Law at Allameh Tabatabai University
author
Mohammad Shoaib
Arefi
Ph.D Student of Public Law at Kish Branch of Tehran University
author
text
article
2019
per
The accused right of having an attorney in the criminal process is one of the fundamental manifestations of citizenship. Advocacy is of utmost importance as one of the most fundamental guarantees of fairness in criminal trials. This right is now recognized in most international human rights conventions as well as in most legal systems around the world. Since a historical study of how this right is recognized has a significant impact on its present guarantee, a historical study of the right is necessary. The approach of the present study is that the right to counsel is closely related to the concept of "due process" and is based on that. The term is a historical concept that underpins the formation and development of the "right to a fair trial" and consequently the right to counsel. The present study shows the relationship between fairness in criminal proceedings on the one hand and guarantees of access to defense counsel on the other.
Judgment
مدیریت آموزش دادگستری استان تهران
1735-1227
19
v.
97
no.
2019
69
93
https://www.ghazavat.org/article_223568_35d9110fa572ee359b5b66ef2c446b04.pdf
Analysis of Criminal Mediation Implementation from the Perspective of Criminal Procedure Mediation By-Laws
alireza
bavi
Ph.D in Criminal Law and Criminology of United Arab Emirates Branch of Islamic Azad University.
author
text
article
2019
per
Today, due to the overwhelming burden of litigation cases, the mechanisms originating from dejudicialization and reduction of responsibility of court proceedings are gradually recognized in the laws of the countries, including the most important of which is the institution of criminal mediation. It has been pursued as a substitute for prosecution in Iranian and French criminal law with the aim of reducing the inflow of cases, and a country such as France has been ahead of Iran in practicing this traditional institution in nature but modern in title. For this reason, Iran is currently in its infancy in the implementation of criminal mediation, so it is of paramount importance to explain the practical executive points required for its better implementation. In addition, the adoption of the By-Laws on Mediation in Criminal Matters by two entities, one by the Judiciary in 1394 and then by the same title and a different text by the Council of Ministers in 1395, include important administrative points along with several ambiguities. While the law enforcement practice in French criminal law as an inspiring country on the one hand, and the practice of indigenous-local practitioners in the application of mediation on the other hand, are not only effective in resolving ambiguities, but can also be used to take a further step in the direction of localizing the implementation of this institution.
Judgment
مدیریت آموزش دادگستری استان تهران
1735-1227
19
v.
97
no.
2019
95
116
https://www.ghazavat.org/article_223576_ad228467e68eb1f98071399dc0745d2c.pdf
A Research on Prison Officer Position
forood
shokooh
Ph.D Student of Criminal Law and Criminology at Shiraz Branch of Islamic Azad University
author
Amirreza
Ghane
MA in Judicial Correction and Criminal Justice at University of Judicial Sciences and Administrative Services.
author
text
article
2019
per
Principally, the tools available in the prison, as well as the actions and measurements of the prison authorities, are aimed at correcting and rehabilitating prisoners. Today, most countries in the world, with all kinds of government and level of development, have come to realize that inmate inflation in prisons is increasing day by day, and prison sentences are finally coming to a standstill in spite of the fact that all countries around the world are trying to correct and train criminals, and to make arrangements for all prisoners not to return to prison after their release or al least to reduce the rate of return to prison. It should always be emphasized that prisons are dynamic institutions that human beings are among the most important and constituent elements of it. It should be borne in mind that prisons do not consist solely of buildings, fences, walls, and in one word inanimate beings. Therefore, prison failure or success cannot be managed solely by means of guidelines, laws, and by-laws that enacted by the state. It should be noted that human elements must be considered at every stage. The research and data collection method in this study is descriptive with reference to library resources, articles, rules, regulations and bylaws.
Judgment
مدیریت آموزش دادگستری استان تهران
1735-1227
19
v.
97
no.
2019
117
137
https://www.ghazavat.org/article_223578_60930611a0452f4a804c2daed6be8a65.pdf
An Analysis of the Attempt to Commit a Taiziri Theft under Iran Penal Law
naser
ghasemi
Assistant Professor at University of Judicial Sciences and Administrative Services.
author
Amir
Moradi
Ph.d in Criminal Law and Criminology of Science and Research Branch of Islamic Azad University
author
text
article
2019
per
As the legislator provides in Article 655 of the Ta'zir Code of 1375, the attempt to commit a Taiziri theft in articles 651 to 654 of the same Code is punishable by certain sentences. Also, pursuant to Article 122 of the Islamic Penal Code of 1392, a person who attempts to commit a crime and does not leave it voluntarily while the commission of the intended main offense is suspended by an act outside his will is still punishable in the manner provided in the latter article. It appears that the legislator, by ratifying Article 122 of Islamic Penal Code of 1392, implicitly repealed Article 655 of Ta'zir Code of 1375, and has provided a criterion for attempt to commit a theft crime in respect of all matters related to Ta'zir theft. In the meantime, the impossible offense is also considered to have the effects of the attempt to commit the crime in Article 122 of the aforementioned Code which we explain along with the inchoate offence considering the term of "legal presumption". In practice, there are also cases in judicial proceedings that are not easily applicable to the above Articles, resulting in numerous readings and interpretations of judges and also reference to related criminal titles.
Judgment
مدیریت آموزش دادگستری استان تهران
1735-1227
19
v.
97
no.
2019
139
151
https://www.ghazavat.org/article_223580_4d4d8bcfe3d44a554d45f8ad93ab6e22.pdf