Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
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ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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Vol. 39, Nº 70 (2021), 942-965
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 14/07/2021 Aceptado 22/08/2021
The Comparison of Examples of
Deviation from Jurisdiction in the
Criminal Procedures of Iran and France
DOI: https://doi.org/10.46398/cuestpol.3970.58
Abbas Ali Ghorbanian *
Ali Mazidi Sharafabadi **
Seyed Mehdi Mansouri ***
Abstract
In criminal proceedings, in special circumstances, exceptions
have been provided for to deviate from the competences of the
judicial authorities, and the present study aims to compare these
cases in Iranian and French criminal procedure. As for intrinsic
jurisdiction, the ndings indicate that in Iranian criminal
procedure deviation from intrinsic jurisdiction is permitted in
cases such as issuing a collective verdict and observing the rules of
multiple crimes. In French criminal procedure, deviation from the inherent
jurisdiction is possible in limited cases and only within the framework of a
referral. Moreover, as regards the rule of diversion from local jurisdiction,
the fact that, without exception, that rule cannot lead to favourable
judicial review of criminal cases is common to both criminal proceedings.
Indeed, the need to establish exceptions and violations of this rule in
order to increase the eciency of the judiciary is inevitable. Moreover, in
both Iranian and French criminal proceedings, the basis for determining
personal jurisdiction is the perpetrator, so that the criminal procedure
has placed the investigation of certain persons under the jurisdiction of a
specic authority.
Keywords: criminal proceedings; intrinsic jurisdiction; local jurisdiction;
personal jurisdiction; comparative law.
* PhD Student in Law, Faculty of Humanities, Islamic Azad University, Yazd, Iran. ORCID ID:
https://orcid.org/0000-0003-1501-1346. Email: ghorbanianabbasali@gmail.com
** Assistant Professor of Law, Faculty of Humanities, Islamic Azad University, Yazd, Iran. ORCID ID:
https://orcid.org/0000-0003-0554-929X. Email: Mazidi_ali_46@yahoo.com
*** Assistant Professor of Law, Faculty of Humanities, Islamic Azad University, Yazd, Iran. ORCID ID:
https://orcid.org/0000-0002-8769-3959. Email: Sm_mansouri89@yahoo.com
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Comparación de ejemplos de desviación de la
jurisdicción en los procedimientos penales de Irán y
Francia
Resumen
En el procedimiento penal, en circunstancias especiales, se han
previsto excepciones para desviarse de las competencias de las autoridades
judiciales, y el presente estudio tiene por objetivo comparar estos casos en el
procedimiento penal iraní y francés. En cuanto a la jurisdicción intrínseca,
los hallazgos indican que en el procedimiento penal iraní se permite la
desviación de la jurisdicción intrínseca en casos como emitir un veredicto
colectivo y observar las reglas de múltiples delitos. En el procedimiento
penal francés, la desviación de la jurisdicción inherente es posible en casos
limitados y solo en el marco de una remisión. Además, en cuanto a la regla
de desvío de la jurisdicción local, el hecho de que, sin excepción alguna,
dicha regla no puede conducir a una revisión judicial favorable de los casos
penales, es común a ambos procesos penales. De hecho, la necesidad de
establecer excepciones y violaciones de esta regla para aumentar la eciencia
del poder judicial es inevitable. Además, tanto en el procedimiento penal
iraní como en el francés, la base para determinar la jurisdicción personal es
el autor, de modo que el procedimiento penal ha colocado la investigación
de determinadas personas bajo la jurisdicción de una autoridad especíca.
Palabras clave: procedimiento penal; jurisdicción intrínseca;
jurisdicción local; jurisdicción personal; derecho
comparado.
Introduction
The Code of Criminal Procedure is an element of the ideal of justice,
legalism and order in societies, guarantees individual rights and freedoms
and provides social security in various elds. The Judicial Development
Plan proposed by the Judiciary paved the way for fundamental changes
in the country’s judicial system, which in the light of the revival of the
judiciary, the development of a comprehensive law in accordance with the
needs of society Criminal matters approved in 1999 became necessary. The
Code of Criminal Procedure, approved on 2013-7-3 , has been integrated as
an appropriate response to this important need based on criminal policies,
and an attempt has been made to lay the foundation of criminal justice in
the foundation of the country’s legal framework.
In the new law of criminal procedure, the jurisdiction of criminal
courts has witnessed changes and amendments in an appropriate and
eective manner, the most important of which in the trial phase of the most
944
Abbas Ali Ghorbanian, Ali Mazidi Sharafabadi y Seyed Mehdi Mansouri
The Comparison of Examples of Deviation from Jurisdiction in the Criminal Procedures of Iran
and France
important amendments to the jurisdiction of criminal courts one and two,
which operated in the Judicial Organization of Iran from 1982 to 1993.
They were re-established and replaced the provincial, general and criminal
courts with a slight change. (Mir Mohammad, 2002).
On the other hand, the Revolutionary Courts, which had previously
followed the dangerous method of unifying judges in dealing with
important crimes, some of which resulted in the death of the perpetrator,
were required to have a system of multiple judges within their jurisdiction
to deal with some crimes.. The juvenile court, the existence of which is
an undeniable necessity for the prosecution of this group of persons, was
not only preserved, but also changed its position from a specialized court,
which was a sub-branch of the general court, to a special court.
One of the important issues in the Code of Criminal Procedure is the
jurisdiction of the judicial authorities. When a crime is committed, it
must be determined from all the criminal courts which one has the special
jurisdiction to judge the perpetrator’s behavior. Jurisdiction in legal terms
is the ability and obligation that judicial authorities have in dealing with
lawsuits under the law, and in another denition, criminal jurisdiction is
the authority assigned to the criminal authority by law.
In fact, due to the specialization of the court, the study of the rules of
jurisdiction, which is in fact dedicated to the division of labor between the
courts, and as cases of deviation from it is of great importance. In fact, by
examining the structure and jurisdiction of criminal courts, both public
and private, we will see the appropriate changes that have been achieved
inspired by the criminal structure and procedure in the past and have led to
a fundamental change in it (Guinchard and Buisson, 2008).
French law belongs to the Roman-German family of written law and has
become the source of legislative changes in the Middle East. and in France,
under the inuence of a collection of ideas and thoughts of scientists and
philosophers of law and social sciences, the reform movement in criminal
law began in the eighteenth century and after the French Revolution in
1789, reforms of criminal law and criminal law began, and the rst French
General Penal Code was passed by the Constituent Assembly in 1791, based
on the idea of individual originality and the preservation of collective values
and the protection of individuals and property. His goal was to defend the
human person and the desire for the full development of talents and to
defend him against any aggression (Ahmadi Golian, 2017).
During the one hundred and eighty years of the rule, the above-mentioned
law had its strengths and weaknesses, and nally in 1810, based on the new
amendments, the general punishment known as the code (Napoleon) was
passed. In general, the criminal procedure of the Napoleonic Empire was
a combination of the mixed penal system between the old French penal
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system and the penal system after the French Revolution. Finally, after two
centuries of rule, the new French Penal Code was passed in 1992, which is
currently in force (Ahmadi Golian, 2017).
Given the importance of French law and their impact on Middle
East law, a comparison of the terms and conditions of deviation from
jurisdiction in the Iranian and French criminal procedure can explain the
areas of identication of weaknesses and challenges in the Iranian criminal
procedure. However, in our country, so far, no article or dissertation has
been registered that comprehensively examines the issue of deviation
from the jurisdiction in the criminal procedure of these two countries. The
researches done are mainly in two special categories.
The rst category is research that has examined the issue of jurisdiction
over specic crimes, such as cybercrime or international litigation. The
second category includes studies that have exclusively examined one of the
competencies, including intrinsic, local, personal, and relative competencies,
and have avoided a comprehensive study of the types of competencies. In
the eld of comparison with other countries, in a few cases, comparisons of
personal and local jurisdiction have been made between the penal systems
of Iran and Turkey, Iran and France, which have been briey compared in
a limited framework of dierences and similarities.
In addition, the disadvantage that is observed in most of the researches
is that the researches have studied the criminal jurisdictions according to
the laws approved before 2013, which due to the signicant changes in the
criminal procedure approved in 2013, the need New research is needed to
update studies based on new rules.
In view of the above, it has been necessary to conduct a comprehensive
and complete study of the weaknesses, strengths and methods of exercising
jurisdiction in the Iranian criminal procedure and compare the identied
cases with an advanced criminal procedure such as France. The results
of the forthcoming research can be considered by the judiciary of our
country as well as research and study institutions as a source for the issue
of jurisdiction of criminal courts in the judicial system of Iran and France.
1. Research Literature
1.1. Jurisdiction
Jurisprudence in the word means competence, desirability,
deservingness (Dehkhoda, 1962) and in reform, refers to the ability and
jurisdiction of judicial authorities in handling lawsuits (Goldoost Joybari,
2014). In procedural terms, it is the authority given by law to a court to hear
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Abbas Ali Ghorbanian, Ali Mazidi Sharafabadi y Seyed Mehdi Mansouri
The Comparison of Examples of Deviation from Jurisdiction in the Criminal Procedures of Iran
and France
a case. In other words, the legal jurisdiction of the court to hear a specic
lawsuit is called jurisdiction in legal terms. In fact, in criminal matters, the
prosecuting authority must have the competence and authority to intervene
and deal with the matter, and this jurisdiction of the prosecuting authority
is usually predicted in four ways: inherent jurisdiction, local jurisdiction,
personal jurisdiction and relative jurisdiction.
1.2 Intrinsic Jurisdiction
Among the types of jurisdiction, rst is the inherent jurisdiction, the
determining criterion of which is the subject of the accusation, and in
this respect, the inherent jurisdiction of the criminal authorities may be
dierent. In our legal system, the jurisdiction of judicial and administrative
authorities in general in relation to each other in terms of class, and the
jurisdiction of public and private courts such as the General Legal and
Criminal Court the Revolutionary Court in terms of type, and the jurisdiction
of rst and highest courts are inherently dierent (Karimi, 2018).
1.3 Local Jurisdiction
According to Article 310 of the Code of Criminal Procedure, local
jurisdiction is the jurisdiction of the reference of the crime scene. In other
words, the accused is tried in a court in which the crime takes place. If a
person commits several crimes in dierent jurisdictions, the trial will
take place in the court in which the most important crime took place. If
the oenses are equal in punishment, the court in which the perpetrator is
arrested will try them all. If the accused has not been arrested, the court in
which the prosecution rst began has jurisdiction over all crimes (Karimi,
2018).
1.4 Relative Jurisdiction
Claims that are determined in terms of the subject matter of the claim
or the quorum of the claim or the amount of the claim are called relative
jurisdiction. Such as eviction disputes, expropriation, etc., and the purpose
of the price demanded or the quorum of the demand, the amount and value
of the demand is what has been the subject of the claim. The subjects can
deviate from relative jurisdiction by compromising each other (Sadrzadeh
Afshar, 2006).
Also, in criminal cases, for some crimes, depending on the extent and
severity of the crime, the criminal jurisdiction also changes. For example,
according to Article 303 of the Code of Criminal Procedure adopted
in 2013, all crimes related to drugs, psychotropic substances and their
precursors, and smuggling of weapons, ammunition, items and controlled
substances are under the jurisdiction of the Revolutionary Court. In fact,
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the Revolutionary Court is a special court because, according to the law,
it has only the jurisdiction to deal with limited and specic crimes, and
outside that framework, it does not have jurisdiction over it (Sadrzadeh
Afshar, 2006).
In fact, the principle is that the criminal court has two jurisdictions to
deal with all drug oenses, except as provided in Article 303. As another
example, according to Article 302 of the Code of Criminal Procedure,
intentional crimes against physical integrity with a ne of half full or more
or more are within the criminal jurisdiction of one. If the diyat is less than
the mentioned amount, the criminal court will have two jurisdictions.
1.5 Personal Jurisdiction
Personal jurisdiction is the jurisdiction that the legislature determines
according to the position, personality, occupation, and age of the perpetrator,
so that a court that does not have the local jurisdiction to hear a case may
be assigned to the crimes of certain individuals. In fact, the legislator,
regardless of the place of the crime and only with regard to the perpetrator,
considers another competent court competent to hear (CÉRÉ, 2011).
2. Examples of deviation from jurisdiction in the criminal
procedure of Iran and France
According to Article 11 of the Code of Criminal Procedure, whenever
a person commits a crime, he will be tried in the court where the crime
took place, and if a person commits several crimes in dierent places, those
crimes will be tried in the court where the most important crime took place
and whenever the oenses are of a degree, the court in which the accused
was arrested shall be tried. In this case, the court of each place carries out
the necessary investigations in accordance with its duties and sends the
results of the investigations to the prosecutor of the court that must hear
them.
In addition, Article 12 of the Code of Criminal Procedure stipulates that
if a person is accused of committing several crimes of various types, he or
she will be tried in a court that has jurisdiction over the most important
crime, with inherent jurisdiction. Also, according to Article 14 of the Code
of Criminal Procedure, the accomplices and accomplices of the crime
are tried in a court that has jurisdiction to try the main perpetrator. On
the other hand, according to Article 20 of the Rules of Procedure of the
Revolutionary Courts and Courts, the accused will be prosecuted in a court
that has committed a crime in the same area, and if he has committed a
crime in several areas, he will be prosecuted in the court where the most
important crime took place. Will take. Recognition of the most important
948
Abbas Ali Ghorbanian, Ali Mazidi Sharafabadi y Seyed Mehdi Mansouri
The Comparison of Examples of Deviation from Jurisdiction in the Criminal Procedures of Iran
and France
crime is with the court in which the accused has been detained. And if the
crimes are of the same degree, the accused will be tried in the area where
he was detained.
Article 197 the Code of Criminal Procedure also stipulates that whenever
a person is accused of committing several crimes of dierent degrees,
he will be tried in a court that has jurisdiction over the most important
crime. In addition, under Article 198 of the Code of Criminal Procedure,
the accomplices and accomplices of the oender go to court, which has
jurisdiction over the principal oender.
2.1. Deviation from the inherent jurisdiction to cancel the
suspension of punishment
According to Article 33 of the Penal Code of 1991, the court that issued
the suspension order or the successor court was competent to revoke it. In
the Islamic Penal Code adopted in 2013, part of Article 54 states: “After the
nal verdict is nal, the court cancels the suspension order and issues an
order to execute the suspended sentence and announces the matter to the
court issuing the suspension order.”
According to this part of the article, two cases occur:
According to Article 55 of the new law, the court that issued the
suspension order, after issuing the order, nds that the convict has a
history of eective conviction or other nal convictions, among which was
a suspended sentence. In this case, the suspension will be canceled.
The other court, after examining the other charge of the accused, nds
out with certainty that the convict has already committed one of the crimes
subject to hadd, qisas, ta’zir up to the seventh degree.
Here, the legislator, contrary to the previous law, has considered a new
situation. Thus, this court, which was not the issuer of the suspension order
in principle, revoked the suspension order and issued an order to execute
the suspended sentence and announced the matter to the court issuing the
suspension order. In fact, the court that did not issue the suspension revokes
it and even orders the execution of the previous sentence. The creation of
additional jurisdiction for a court that was not originally in the process of
suspension can be criticized, because in principle it would have been better
for the court issuing the suspension to lift the sentence in all circumstances,
rather than the court that ruled in another case.
Therefore, when a suspension decision is issued in one branch and then
the case is heard in another court, in this case, too, the court, regardless of
its inherent jurisdiction, is allowed to cancel the suspension and execute
the sentence issued by the said branch and comment. It is about that that
one of the exceptions is deviation from inherent jurisdiction.
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2.2. Examples of deviation from intrinsic jurisdiction in French
criminal procedure
In French criminal procedure, in criminal, misdemeanor or misdemeanor
cases, the criminal branch of the Supreme Court can disqualify any
investigative or judicial authority and send the case to another authority
due to a legitimate suspicion. The request for referral can be submitted
by the Attorney General of the Supreme Court or the court located in the
requested authority or by the litigants. This request must be communicated
to all litigants who have a ten-day deadline to submit the bill to the Oce
of the Supreme Court. The submission of a request has no suspensive eect
unless the Supreme Court issues another order in this regard (Article 662 of
the French Code of Criminal Procedure, paragraphs 2-3).
Similar cases are not mentioned in the Iranian Code of Criminal
Procedure, and they can hardly be classied under such headings as
maintaining public order. There seems to be a gap in accepting the referral
of a case from one judicial authority to another. In general, it can be said
that in the French Code of Criminal Procedure, the legislator has provided
for the issue of violation of the rule of inherent jurisdiction in both the
prosecutor’s oce and the court.
3. Examples of deviation from local jurisdiction in the criminal
procedure of Iran and France
3.1. Examples of deviation from local jurisdiction to maintain
public order and security
Violation of the rule of local jurisdiction on the basis of public order and
security is one of the common cases in the two legal systems of Iran and
France. According to Article 420 of criminal law:
In addition to the cases mentioned in the previous article, in order to maintain
public order and security, on the proposal of the head of the judiciary with the
Attorney General and the Supreme Court, the case will be transferred to another
jurisdiction.
This legal article can be considered as one of the cases in which the
security consequences with the eects of criminal proceedings on public
interests are a criterion and justication for violating the rule of local
jurisdiction. The text of the article does not explicitly mention a specic
crime and the possibility of the mentioned expediency of maintaining public
order and security in dierent situations is conceivable. Some have cited
the maintenance of order in the city and the general public as examples
of this title, such as that a criminal trial disrupts urban security (Goldoost
Joybari, 2014).
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Abbas Ali Ghorbanian, Ali Mazidi Sharafabadi y Seyed Mehdi Mansouri
The Comparison of Examples of Deviation from Jurisdiction in the Criminal Procedures of Iran
and France
Despite the benets that can be imagined in this regard, and some of
which will be mentioned later in French law, however, the existence of
the phrase is general and vague, and in fact gives the relevant authority
broad authority to violate the local jurisdiction rule. Seems. Perhaps this
is why some have considered it outside the existing global framework and
principles of human rights and in clear contradiction with Article 34 of the
Constitution on the right of individuals to access a competent legal court
(Akhoondi, 2009). Article 665 of the French Code of Criminal Procedure
also provides:
The transfer of a case from one authority to another can be ordered by the
criminal branch due to public security and only at the request of the Attorney
General of the Supreme Court ...
It can be seen that the French legislature has a similar procedure in the
discussion of public security and the only dierence is in the jurisdiction
of the applicant, who in Iran, along with the Attorney General, the head of
the judiciary has the same authority, but in the French legal system This
authority is limited to the Attorney General of the Supreme Court.
3.2. Deviation from local jurisdiction due to diculty with the
complexity of the case
The severity or complexity of the crime, especially in cases where there
are a large number of plaintis or defendants and the crime rate is high
in terms of geographical or social consequences, requires that, like simple
cases with fewer problems, a single investigating judge Not addressed and
more appropriate and factual mechanisms should be put in place for them.
In fact, traditional methods of investigation today are not the answer to
new crimes, which are sometimes committed in a gang and organized way
or with modern and advanced tools.
Establishment of judicial cooperation commissions at the level of the
prosecutor’s oce, which based on the severity and complexity of the
crime committed and at the discretion of the president of the city court,
can investigate the case of these investigative commissions, is one of the
mechanisms envisaged by the French It is considered better and faster. In
addition, in French law, contrary to the practice of the Iranian legislature,
there is another type of violation of the rule of local jurisdiction, which is
based solely on the type of crime committed and will be discussed later.
Regarding the complexity and complexity of the case, Article 1-52 of the
French Code of Criminal Procedure provides:
In some city courts, investigating judges meet in an investigative panel.
These judges in this investigative panel are only competent to conduct criminal
investigations. These judges are also competent to deal with matters under Articles
1-13. And 2-83 of the French Code of Criminal Procedure require the need for
judicial cooperation, have the authority...
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This article of the law, which is included in the chapter on the
investigating judge and its local jurisdiction, refers to the existence of an
investigative body that, in the case of crimes and cases of complexity and
complexity, has a dierent local jurisdiction than that provided for an
individual investigating judge. Has been determined. The local jurisdiction
of these research bodies and the geographical areas in the territory of each
of them are determined according to a separate regulation.
Apart from the discussion of crimes mentioned in the article, which is
within the jurisdiction of the panel, the complexity of the case is another
criterion for disqualifying a competent local investigating judge by
expanding his or her jurisdiction and referring the case to the investigating
panel. According to Article 1-83 of the French Code of Criminal Procedure:
When the severity of the case justies the matter, the investigation may be
subject to judicial co-operation in accordance with the procedures provided
for in this article ... Or, if there is an obstacle for his successor, as soon as the
investigation begins directly or at the request of the city prosecutor in the initial
application, he selects one or more press ocers to join the investigator in charge
of the investigation ... In cases where the investigation is ongoing in a reference
where there is no investigative board, the president of the city court where the
investigative board is located, after declaring the incompetence of the interrogator
in favor of the board, the interrogator in charge of the investigation and one or
more interrogators in Selects criminal matters. This declaration of incompetence
will take eect from the date of appointment of the investigative board (Tadayon,
2015: 155).
The Iranian legislature in the Code of Criminal Procedure (similar to the
Code of Criminal Procedure of 1378) does not provide a similar mechanism
to facilitate and expedite the processing of cases that are particularly
dicult and complex, and in all cases speak of an investigating judge or
interrogator. It is responsible for conducting preliminary investigations
into all crimes, regardless of their severity and complexity.
3.3. Deviation from local jurisdiction for the proper judicial
review
In addition to the reasons for public safety in the French Code of Criminal
Procedure, the proper handling of the case is one of the justications that
can be used to refer the case from a competent local judicial authority to
another authority. This factor is stated in Article 665 of the French Code of
Criminal Procedure.
The same factor in law Iran does not exist, and instead the Iranian
legislature focuses on referrals to similar cases, such as the residence of the
accused or more defendants in another court, or the proximity of another
court to the crime scene so that another (incompetent local) court is easier.
Has been able to address the issue (paragraphs a and b of Article 419 of the
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Abbas Ali Ghorbanian, Ali Mazidi Sharafabadi y Seyed Mehdi Mansouri
The Comparison of Examples of Deviation from Jurisdiction in the Criminal Procedures of Iran
and France
Code of Criminal Procedure). However, the proper administration of the
proceedings can be considered close in some respects to the two paragraphs
mentioned above in Iranian law.
However, the French legislature has set more formalities and rules than
in Iranian law for referrals in this case. Requesting the referral of a case on
this basis, contrary to the case of maintaining public security (paragraph 1
of Article 665 of the French Code of Criminal Procedure), which is exclusive
to the Attorney General of the Supreme Court, can also be referred by the
parties and the Attorney General. The crime is within its local jurisdiction,
too. Of course, in any case, the referral is with the criminal branch of the
Supreme Court. In addition, the request based on this direction must be
notied to the parties to the case and they have eight days to submit their
defense bill to the oce of the criminal branch. It would have been better
for the Iranian legislator to refer the case based on paragraphs A and B of
Article 419; It provided for such a right for the litigants to express their
views in rejecting or approving the decision to remit the case. In any case,
the criminal branch of the French Supreme Court must decide within eight
days.
3.4. Deviation from local jurisdiction due to legitimate
suspicion
Another case that according to law France can authorize the referral of
a case from a local jurisdiction to another jurisdiction, provided there is a
legitimate suspicion. The French legislature has not provided a denition
of legitimate suspicion, but according to some judgments, a request for
referral due to legitimate suspicion should target a judicial process, not a
judge with a specic name and identity. In another case, legitimate claims
against the gendarmerie and the judiciary were not admissible.
A request to transfer a case from a competent local branch to another
branch can be made at the request of the Attorney General of the Supreme
Court or the relevant geographical tribunal or the litigants.
The request has been notied to the parties and each party can submit
its bill to the Oce of the Criminal Branch of the Court within ten days
(Article 662 of the French Criminal Procedure, paragraphs 2-3).
A similar case is not mentioned in the Iranian Code of Criminal Procedure,
and it is dicult to place them under such headings as maintaining public
order. There seems to be a gap in accepting the referral of a case from one
judicial authority to another.
In general, as has been seen, in the Code of Criminal Procedure of
France, Muqtada has provided for the issue of violation of the rule of local
jurisdiction in both the prosecutor’s oce and the court together and in
several cases.
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3.5. Deviation from local jurisdiction according to the type of
crime committed
As mentioned in the previous discussion, in addition to establishing
investigative committees based on the severity and complexity of the crime
committed, the French legislature has established, on a number of specic
occasions, peer-reviewed competent courts under the general rule. The
establishment of specialized tribunals for specic crimes began in 1975 and
was intensied and regulated by Law 204-2004 of March 9, 2004.
Following the enactment of the Law of March 9, 2004 on the adaptation
of the judiciary to criminal developments, violations of the rule of local
jurisdiction have increased according to the type of crime and the number
of these specialized authorities has increased. To better combat high-risk,
organized and complex crimes, “committees” have been set up consisting
of police investigation, prosecution, investigation and prosecution
departments. In this case, the jurisdiction of a city court can be extended to
the jurisdiction of one or more courts of appeal (Tadayon, 2015).
In fact, in specic oenses dened by law, the local jurisdiction of a
county court and a criminal court extends to the jurisdiction of one or more
appellate courts. In the geographical complex of France, eight major city
courts have been established in the form of special interregional courts.
These jurisdictions are in alphabetical order: Bordeaux, Fort de France,
Lille, Lyon, Marseille, Nancy, Paris Verne. These courts have a similar and
non-exclusive jurisdiction over the jurisdiction that prevails under the
general rules of local jurisdiction. In addition, these courts have changed
in some way through the specialization of appointed judges. These changes
include a special section of the judiciary and designated structures of
specialized investigation and prosecution to detect crimes (Dinarvand et
al., 2021).
In each city court, which is formed in the form of an inter-regional
court, the provincial prosecutor and the head of the appellate court, after
obtaining the opinion of the city prosecutor and the head of the city court,
one or more judges, prosecutors and judges of the special investigation
meeting, Determine prosecution. There is no longer any interference
from the Supreme Council of Judicial Ocers. These authorities have the
following specialties:
Economic and nancial crimes, crimes related to health, terrorism, drug
tracking, organized crime, water pollution by ship euents.
With the exception of two special tribunals for terrorist oenses and
drug tracking, which were adopted on December 16, 1992, most of the
tribunals were established by the March 9, 2004 law and followed the
model of the tribunals for terrorism and narcotics.
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and France
In one belief, the Special Criminal Courts in the eld of terrorism are
in fact extraordinary courts created in the wake of the exceptional terrorist
incidents of 1986 in France and then transformed into permanent special
courts and special courts in the eld of economic crimes and Finance,
drug tracking, etc. have been created by following the example of special
criminal courts in the eld of terrorism (Gozzi, 2003).
4. Examples of deviation from personal jurisdiction in the
criminal procedure of Iran and France
4.1. Examples of deviation from personal jurisdiction in Iranian
criminal procedure
Violation of the rule of local jurisdiction by the perpetrator is one of the
cases that have been considered in the Iranian criminal justice system. In
criminal procedure code Adopted in 2013, except for the repetition of the
cases of the previous law, with some amendments, the cases of violation
of the local jurisdiction rule have been added to the credibility of the
perpetrator. In this regard, Article 307 of the Criminal Procedur Code, in
determining the jurisdiction of the capital’s criminal courts, provides:
Investigating the allegations of the heads of the three forces and their
deputies and advisers, the chairman and members of the Expediency Council,
members of the Guardian Council, members of the Islamic Consultative
Assembly and leadership experts, ministers and deputy ministers, judicial
holders, chairman and prosecutor of the Court of Audit, ambassadors ,
Governors, governors of provincial centers and general crimes of military
and law enforcement ocers of the rank of brigadier general or higher
or with the rank of second brigadier general working in the ranks of the
general brigade or the command of the independent brigade and general
managers of provincial intelligence, as the case may be in Tehran criminal
courts. “Unless other authorities have jurisdiction over these crimes under
special laws.”
In the case of crimes committed by military personnel with the rank of
brigadier general or higher, all their crimes, whether military or general,
are tried in the military or civilian courts of the capital, as the case may
be. In this regard, Article 3 of the Law on Determining the Jurisdiction of
Military Courts and Courts of the Country, approved by the Expediency
Council in 1994, stipulates: "All military crimes with the rank of brigadier
general and higher are prosecuted in the relevant judicial authorities in
Tehran” (Khanali Pourvajargah, 2017: 14).
In addition, Article 308 of the Code of Criminal Procedure stipulates:
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Investigating the allegations of advisers to ministers, the highest ocials
of governmental organizations, companies and institutions, and public non-
governmental organizations and institutions, general managers, governors,
managers of institutions, organizations, government departments, and public
non-governmental organizations and provinces.” “Cities, heads of universities and
higher education institutions, mayors of city centers and district governors, as the
case may be, have jurisdiction over the criminal courts of the provincial capital,
unless these charges are dealt with by other authorities under special laws.
In this regard, as is clear from the text of the article, the scope and scope
of the persons whose jurisdiction to investigate the charges is contrary to
the jurisdiction of the crime scene is within the jurisdiction of the provincial
criminal court. For example, from all judicial base holders to all governors
and governors and even advisers to the three branches. An overview of the
list of persons mentioned conrms that there is no clear and acceptable
justication for justifying the jurisdiction of many persons on this list to
the Tehran Criminal Court, contrary to the usual rule; In particular, this
article covers all charges without distinction. In addition, there has been a
deviation from jurisdiction in this case, regardless of whether the crime was
committed due to a government job or not, and in this case it has deviated
from the principles related to jurisdiction to a large extent (Rahmadl, 2018).
The development of violations of local jurisdiction and the abundant
allocation of this rule makes the main rule, including the jurisdiction of the
crime scene and strong justications beyond it, ease of gathering evidence
and preserving the eects of the crime, ease of prosecuting the accused and
partners and deputies, ease of witnesses and Informed, etc.) to be set aside.
4.2. Examples of deviation from personal jurisdiction in the
French criminal procedure
Violations of local jurisdiction by the perpetrator’s validity are not as
widely used in the Iranian Code of Criminal Procedure as in the French
Code of Criminal Procedure. Conversely, the French legislature focuses
on the type and severity of the local jurisdiction rule rather than the type,
severity and emphasizes the complexity of the crime committed. However,
there are exceptions and limitations; For example, in the Code of Judicial
Procedure of the French Armed Forces, there are cases of deviation from
local jurisdiction as a perpetrator. In this regard, Article 3-112 of this law
provides:
"To deal with the crimes of cavalry (marshal) and admiral ocers, generals or
their ranks and members of the Army Command and Control Center, a High Court
of the Armed Forces shall be established in time of war, the seat of which shall be
determined by regulations. “This court can be formed in all parts of the territory
of the French Republic. In exceptional circumstances, the seat of this court can
be determined in another place according to the regulations of the Council of
Ministers” (Tadayon, 2015: 155).
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The Comparison of Examples of Deviation from Jurisdiction in the Criminal Procedures of Iran
and France
5. Examples of deviation from relative jurisdiction in the
criminal procedure of Iran and France
5.1. Examples of deviation from relative jurisdiction in Iranian
criminal procedure: Jurisdiction of the criminal court one
The criminal court has two general powers to deal with all crimes, unless
the law on the investigation of a crime places the jurisdiction of another
authority (Article 301 of the Code of Criminal Procedure). The court is
composed of one judge in the jurisdiction of the city. (Article 290 of the Code
of Criminal Procedure) In places that have not yet become a city due to small
population and are considered “districts” in terms of national divisions, if
necessary at the discretion of the head of the judiciary, the district general
court is formed and handles domestic crimes within the jurisdiction of the
Second Criminal Court. (Article 299 of the Code of Criminal Procedure)
Article 302 of the Code of Criminal Procedure adopted in 2013, while
the jurisdiction of the rst criminal court has declared the investigation
of 4th degree and higher criminal oenses, the main third degree crimes
include oenses that in many cases for a single criminal act in addition to
imprisonment, other punishments such as Fines and other penalties are
also provided.
Regarding the jurisdiction of the rst criminal court, it is necessary to
pay attention to two other points. First, if a crime under Article 302 of the
Code of Criminal Procedure is brought before the rst criminal court and the
court, after sucient investigation and conclusion of the trial, determines
that the act has another criminal title that is within the jurisdiction of the
court. There are two criminal cases, the rst criminal court will investigate
this crime and issue an appropriate sentence (Note 2 of Article 316 of the
Code of Criminal Procedure). In this case, the reason for the permission of
the rst criminal court to try a crime under the jurisdiction of the second
criminal court is the existence of a single inherent jurisdiction between
them, but the opposite is not true. That is, if the case was initially sent to
this court on the basis of the general jurisdiction of the criminal court, but
the court nds out after the trial that the crime falls within the jurisdiction
of the rst criminal court, because the crimes within the rst jurisdiction of
the criminal court must Judges will be tried, the criminal court will not be
allowed to continue the trial and issue a verdict.
Second, if a person accused of committing two crimes, one under the
jurisdiction of one criminal court and the other under the jurisdiction of the
second criminal court or juveniles, all his charges will be tried in the rst
criminal court (Note 1 of Article 316 of the Code of Criminal Procedure).
Criminal proceedings.
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5.1.2. Exclusive jurisdiction of the courts of the center of the
province or the capital
In some cases, either because of the importance of the crime and the
need for more careful trial in the central courts, or because of the ocial
position of the perpetrator, who usually serves in the provincial or capital
center, the legislature deviates from the general principle of jurisdiction.
And has dealt with it exclusively within the jurisdiction of the provincial
capital courts or the courts of Tehran. In these cases, the competent court
to conduct investigations, as the case may be, is the city court of the capital
of the province or the capital court, because according to Article 29 of the
Code of Criminal Procedure: “It is the place where the crime took place, it
is the responsibility of the prosecutor’s oce, which acts in the presence of
a competent court, unless otherwise provided by law.”
Another case of jurisdiction of the provincial central courts, which
of course this time is accompanied by the determination of the inherent
jurisdiction of this court, is political and press crimes, which are tried not
in the court where the crime was committed, but in the criminal court
of a provincial center. Regarding press crimes, the note of Article 36 of
the Amended Press Law of 1998 states: “Press crimes will be tried in the
competent courts of the provincial capitals.” But criminal procedure code,
After the above article, it has been approved and in addition to determining
the local jurisdiction (center of the province), it has also determined the
inherent jurisdiction of the court dealing with these crimes and political
crimes (criminal one). Article 305 Code of Criminal Procedure "Political
and press crimes are prosecuted publicly in the criminal court of a provincial
center where the crime took place in the presence of a jury, in accordance
with Article 352 of this law,”
It is necessary to pay attention to this point that the above article refers
to “criminal courts” and to see the types of criminal courts, one should pay
attention to Article 206 of the Code of Criminal Procedure. Therefore, the
crimes of the mentioned persons, as the case may be, are tried in one or
two criminal courts, one or two military courts, or the Tehran Revolution,
and not necessarily in one criminal court. Also, the exception to the last
part of the article is provided by the legislator for special cases, such as
the jurisdiction of special clerical courts, which are in principle outside
the criminal courts enumerated in Article 296 and are subject to special
regulations.
Regarding the time of holding the above positions, Article 309 adds:
Have been criminalized. Therefore, for the exceptional jurisdiction provided
in Articles 307 and 308, the perpetrator must hold either of the above
positions at the time of the commission of the crime or at the time of the
investigation of the crime. Suciency of committing a crime before holding
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The Comparison of Examples of Deviation from Jurisdiction in the Criminal Procedures of Iran
and France
these positions to qualify for a court in Tehran or the provincial capital,
clearly shows that the crime does not have to be related to the performance
of duties.
Finally, according to Article 59 of the Law on Patents, Industrial
Designs and with the approval of the Judicial and Legal Commission of
the Trademark Parliament, which was reached on 2010-10-29 and must
be implemented on a trial basis for a period of ve years: This law and
its executive regulations are under the jurisdiction of a special branch or
branches of Tehran’s public courts ...) However, according to the word
“disputes”, which in our legal language appears in legal issues and lawsuits,
it is dicult to The citation of this article considered the investigation of
the crimes contained in this law in the exclusive jurisdiction of the judicial
authorities of Tehran, but Article 179 of the executive regulations of this
law, approved on 2008-3-30, explicitly provides that:
According to Article 59 of the law, legal and criminal lawsuits related to the
law and this regulation are within the jurisdiction of a special branch or branches
of the Tehran General Court, which is appointed by the head of the judiciary and, if
possible, is located in the General Directorate of Industrial Property. To be. In the
case of criminal cases, if the crime took place outside of Tehran or was discovered
or the accused was arrested outside of Tehran, then a preliminary investigation
was carried out at the scene of the crime or the discovery or arrest of the accused
and the case was referred to the above courts?
In this regard, other examples can be mentioned, including: Note 2 of
Article 46 of the Law on Combating Commodity and Currency Smuggling,
approved on 2013-12-24, regarding the investigation of all the accusations
of the heads and members of the branches of the Government Punishment
Organization They are involved in cases of smuggling of goods and currency,
in the central courts and tribunals (Khaleqi, 2015).
5.1.3. Jurisdiction of the Revolutionary Court in dealing with
drug crimes
Pursuant to paragraph c of Article 303 of the Code of Criminal Procedure
adopted in 2013, the Revolutionary Court is a special court to deal with all
crimes related to drugs, psychedelics and their precursors and the smuggling
of weapons, ammunition and items and controlled substances. In fact, the
principle is (under Article 301) that the criminal court has two powers to
deal with all crimes, except in cases where the law has explicitly conferred
jurisdiction on the court subject to Article 294 in a particular case.
After adding Articles 301 and 303 of the new Code of Criminal Procedure,
we come to the conclusion that the jurisdiction of the Revolutionary Court
is exceptional; That is, the principle is based on its incompetence in
criminal matters; Unless permitted by the legislature. Also, Article 1 of the
Law Amending the Anti-Narcotics Law adopted in 1997 in 9 paragraphs
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refers to the actions that should be in principle under the jurisdiction of the
Revolutionary Court;
Such as poppy cultivation (absolutely), cannabis cultivation (for drug
production); Importing, sending, exporting, producing and manufacturing
all kinds of drugs; Storage, transportation, purchase, distribution,
concealment, transit, supply and sale of drugs; Establish or manage a place
for drug use; Drug use in any form and by any means except legal cases;
Production, manufacture, purchase, sale and maintenance of tools and
equipment and tools related to the manufacture and use of drugs; Escaping
or sheltering drug suspects or convicts arrested or arrested; Includes the
elimination or concealment of evidence of drug oenders, and the placement
of drugs or tools and equipment in a place intended to accuse another.
However, one of the issues raised here is the crime of practical and verbal
defamation, which is mentioned in Articles 26 and 27 of the Anti-Narcotics
Law, respectively. The question is whether the crime of verbal and practical
defamation, due to their nature, should be under the jurisdiction of the
Revolutionary Court or not?
Practical defamation refers to a case in which a person places drugs or
psychotropic substances in order to accuse another. But verbal defamation
is just an accusation that is made in order to prosecute a person in
the competent authorities. With regard to jurisdiction over practical
defamation, there seems to be no doubt that it falls within the jurisdiction
of the Revolutionary Court; Because the perpetrator is to be sentenced to
the maximum punishment for the same crime. But regarding Article 27,
which deals only with defamation and slander, is the investigation of this
crime also under the jurisdiction of the Revolutionary Court?
According to the various opinions issued by the Legal Department of
the Judiciary in this regard, it seems that defamation has nothing to do
with drugs, and in cases of doubt, we should refer to the principle; That is,
Article 301 of the new Code of Criminal Procedure, which is based on the
jurisdiction of the Second Criminal Court. In this regard, the argument is
that the nature of the crime is merely defamation and slander, which has
been criminalized by the legislator of the Islamic Penal Code, although the
subject of slander or defamation is related to drugs.
On the other hand, another argument can be made that although it
is a public oense, but since its proof requires proof of the “falsity of the
claim”, although this proof is achieved simply by not providing evidence
by the mufti, it is possible. Defendant to provide evidence to substantiate
his claim. Accordingly, verbal defamation is under the jurisdiction of the
Revolutionary Court.
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The Comparison of Examples of Deviation from Jurisdiction in the Criminal Procedures of Iran
and France
5.2. Examples of deviation from relative jurisdiction in French
criminal procedure
Pursuant to Article 76-706 of the Code of Criminal Procedure of
France, the city prosecutor, the investigating judge and the criminal courts
established in accordance with Articles 70-75 have the same jurisdiction
as the courts and tribunals which, according to the general laws of local
jurisdiction are recognized as competent. In addition, terrorist acts with
criminal descriptions are tried by a special criminal court without a jury.
The tribunal consists of a president and six advisers to professional judges.
Under normal circumstances, however, the criminal court is composed of
three specialized judges (one president and two advisers) and one member
of the jury (Reza Vanaki et al., 2021).
There has been criticism of them since the establishment of the Special
Terrorist Courts. In fact, the formation of these courts is based on the fact
that the nature of the terrorist crime and the pressures from which it can be
directed at the jury, justifying the need for a special trial with professional
judges (Rezvani and Daryanvard, 2012).
On the other hand, some people are against considering these courts as
exceptional, and in fact, they have not considered the philosophy of their
status as contrary to the general rules, and in this regard, Exceptions have
given a negative answer (Gozzi, 2003). It has been argued that Muqtada
did not intend to establish an exceptional judicial system in the law of
September 9, 1986 (Sepehri, 2006). Accordingly, it is more appropriate
to consider a criminal court without the presence of a jury as a special
character by nature.
In this sense, the legislature did not intend to re-establish exceptional
courts, such as the National Security Court, by creating these courts with
the same jurisdiction as the general courts, and in fact these courts have
a relative jurisdiction over criminal oenses of a criminal nature. That is
what happens in peacetime. From this perspective, does the existence of
these special courts contradict the principle of equality of persons before
the law in Article 7 of the 1789 Declaration of Human Rights or not? The
Constitutional Council has considered the existence of these courts to be
compatible with criminal courts and to help ensure a fair trial.
Conclusion
The Code of Criminal Procedure, as an extract of the ideal of justice,
legalism and order in societies, guarantees individual rights and freedoms
and provides social security in various elds. One of the key issues in the
Code of Criminal Procedure is determining the jurisdiction of judicial
authorities
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In fact, after committing a crime, it must be determined from all
criminal courts which one has the jurisdiction to judge the behavior of the
perpetrator. Depending on the type of crime, the importance of the crime
committed, the place of the crime, the occupational and social status of the
oender, and also taking into account the age and military rank (in the case
of military personnel), the powers of judicial authorities Relatively divided.
The principle of jurisdiction of judicial authorities derives from the
principle of legality of the court and is part of the jurisprudential rules
in criminal proceedings, so that the litigants can not agree in any way
contrary to what the law determines the jurisdiction of a court. However,
in the criminal procedure and in special circumstances, exceptions have
been provided for deviation from the mentioned jurisdictions, and the
present study has compared these cases in the Iranian and French criminal
procedure.
Regarding intrinsic jurisdiction, the research ndings indicate that in
both Iranian and French criminal proceedings, the most important basis
in distinguishing and recognizing the inherent jurisdiction of the court is
the type of crime committed and the amount of punishment. According to
the commonalities of the Iranian and French criminal procedure, intrinsic
jurisdiction is tied to public order and its rules are among the rules of
jurisprudence and are unchangeable in implementation, and violation of its
rules causes the absolute invalidity of any decision made from it. However,
in the Iranian criminal procedure, deviation from inherent jurisdiction is
permitted in cases such as issuing a collective verdict and observing the
rules of multiple oenses.
The result is that because the degree of punishment determines the
jurisdiction of the courts and the punishments are divided into eight
degrees based on weakness and severity in Article 19 of the Islamic Penal
Code, and in case of multiple punishments, imprisonment is considered the
most severe punishment, so in case of multiple punishments, imprisonment
should be punished. In addition, when a suspension judgment is issued in a
branch and then the case is heard in another court, the court, regardless of
its inherent jurisdiction, is allowed to overturn the suspension and enforce
the sentence. From the mentioned branch and comment on it.
In fact, the court that did not issue the suspension revokes it and even
orders the execution of the previous sentence. Deviation from inherent
jurisdiction can be criticized for a court that was not originally suspended.
Because, in principle, it would have been better for the issuing court to
suspend the sentence in all circumstances, rather than for the court that
issued the nal verdict in another case. In French criminal procedure,
deviation from inherent jurisdiction is possible in limited cases and only
within the framework of a referral.
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and France
On the other hand, the ndings indicate that in the Iranian criminal
procedure, deviation from personal jurisdiction within the position and
position of the perpetrator is provided. Also, contrary to the Iranian
criminal procedure, in the French criminal procedure, deviation from
personal jurisdiction in cases where the crime committed by French
nationals outside the territory of France is not a crime or misdemeanor and
also when the crime is a misdemeanor in the country of occurrence It is not
considered a crime or punishable. In addition, French criminal procedure
provides for the waiver of personal jurisdiction in cases such as the plainti
not ling a complaint and the lack of discretion of the prosecutor to make
the prosecution appropriate.
Also, based on the ndings in both Iranian and French criminal
proceedings, relative jurisdiction is determined based on the merits of
each of the criminal authorities that have inherent and local jurisdiction,
based on the importance of the crime and the extent of their punishment.
However, deviation from the jurisdiction of the relative court in the Iranian
criminal procedure is envisaged within the jurisdiction of the rst criminal
court, the provincial or capital courts and the revolution regarding crimes
such as diyat, drug tracking and the prosecution of ocial crimes. On
the other hand, in the French criminal procedure, unlike in Iran, deviation
from relative jurisdiction in cases such as position, general circumstances
and type of crime is provided within the jurisdiction of the juvenile court,
juvenile police and the local police court.
In addition, the results of the study show that in the case of the rule
of deviation from local jurisdiction, the fact that, without any exception,
the said rule can not lead to a favorable judicial review of criminal cases,
is common to both criminal proceedings. In fact, the need to provide
for exceptions and violations of this rule to increase the eciency of the
judiciary is inevitable. However, it should be noted that the determination
and emphasis on the rules of jurisdiction as mandatory rules in the criminal
proceedings, including the rule of local jurisdiction for the purpose of
establishing judicial order and especially the protection of the rights of the
accused, is a matter of course and accepted.
In addition, a look at the violations of the rule of local jurisdiction in
the two legal systems of Iran and France conrms that despite the French
legislature, which has undergone extensive changes in this regard in recent
years, the Iranian legislature, especially in the Code of Criminal Procedure
adopted in 2013. Its cases are also limited and it can be considered as the
source of change. On the other hand, the ndings of the study indicate that
the Iranian Muqtana, as observed in the classication of cases of violation
of local jurisdiction, except in cases of violation of the rule on the authority
of the perpetrator, in other cases are satised with general conditions such
as maintaining public order and security.
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In contrast, there are several violations of the rule depending on the
type of crime committed in the French system. In addition, the ndings
of the study show that in both Iranian and French criminal procedure, the
basis for determining personal jurisdiction is the perpetrator, so that the
criminal procedure has placed the investigation of the charges of certain
individuals in the jurisdiction of a specic authority. This jurisdiction is
only eective in changing the local jurisdiction.
Given these results, it is suggested that the Iranian legislature, like the
French legislature, provide for the right to notify judicial decisions in order
to refer the case to the litigants and to present a defense bill. Pay special
attention to the developments of delinquency in recent years, especially
the quantitative and qualitative development of gang and organized crimes
and terrorist crimes, and adapt the traditional solutions for dealing with all
types of crimes with today’s delinquent developments.
On the other hand, what can substantiate the violation of the local
jurisdiction rule is better handling of the case and increasing the eciency
of the judiciary, and what better guarantees this increase is the anticipation
of specialized courts and tribunals. Are competent under the general rule
of local jurisdiction.
In fact, what we have seen in the French legal system includes
commissions of inquiry with specialized judicial institutions, provided
that they do not become specialized courts contrary to the rule of inherent
jurisdiction and less legal than what is provided in the general judicial
system for litigants, especially defendants. Can not be determined, can
increase the eciency of the judiciary and ght more eectively and better,
especially with new forms of crime.
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Esta revista fue editada en formato digital y publicada
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