Judicatory Surveillance Accord in the Retribution
Process of Iran and France
Zahra Zadeh Hossein Oliaei
Department of Law, Urmia Branch, Islamic Azad University, Urmia, Iran
*
Corresponding Author email: [email protected]
ABSTRACT: Accord includes the decision that justice of peace (interrogator, justice, in the specifications of new codes of the interrogator) in the process of initial researches and scrutinizing the dossier and also in some cases the court issues it in the time of pursuing and trial. That this decision is related to warden of the culprit, other people or properties. Code of criminal procedures approbated in 2013 considering new consequences dominating codes of criminal procedures in the world and maximum conformity of subjects with the humanistic rights criterion, following principles dominating square judgment and complementary justice tried to step forward in obviating the examining of the dossiers and removing and in some cases, making ineffective such norms of detection trial system that are adversary with worlds accepted principles. According with the progress of societies, development in the technology and changing and complexity happened in the social adequacies, controlling institutions should be varied and changed. From this aspect this rule in getting secure accords from the culprits, with attention to comparative studies, have started a double increase. This recent institution, along with tenfold secure accords can in addition to “judicatory surveillance accord” of secure accords and creating an institution related to, with creating widespread authorities to the interrogator, has limited the cases to issue provisional interdict, and also stop its unpleasant consequences, and from the other hand, make it to attention more to propriety of securing and its personalization.
Key words: code of criminal procedures, culprit, criminal secure accord, provisional interdict
INTRODUCTION
The terms viewer and surveillance are with the meaning of seeing that predicated as beholder. In term, judicatory surveillance is told to a person or institution that considers acts of one or some peoples and evaluate the verification of that action, and have legal authorities. If this surveillance happens from the side of judicatures, court houses or the judge himself, it will show the new established institution for judicatory surveillance in the code of criminal principal of 2013.
Historically, records of using this accord comes back to France trial system that in the code of july17, 1970, from articles 138 to 143 has been mentioned as judicatory surveillance. So, the main purpose of judicatory surveillance institution, is to give maximum freedom to the culprit, but it should be according to detection of trust and preservation of general discipline. in the codes of criminal principle of 2013, legislator in addition to pays attention to a very desirable aspect of previous laws , and to keep rights of the culprit and giving maximum freedom to him in the time of primary inspection , has marked a new establishment with title of “judicatory surveillance accord” in article 247. Judicatory surveillance accord except in some cases, has not been recorded in the codes of our country. This accord as criminal secure accord , does not limits the freedom of the culprit but includes limitation in issuance of slightly judicatory surveillance accord and includes some limitation in job, limitation of using social facilities , limitation of traffic and so on. In real, justice of peace, after issuance of surveillance accord, will supervise the guilty person acting to the tasks of accord.
According to article 247: “the interrogator due to the committed crime can, in addition to issue a secure issuance, till a definite time can issue judicatory surveillance accord that includes one or some of these codes below: (a) to introduce their selves periodically to places or institutes defined by the interrogator (B) stop driving motors (c) prohibition of being occupied in works related to the committed crime. (d) Prohibition of keeping weapons with legal justification (e) prohibition of crossing the border. With the specification of article 250 of the new code, in issuing the judicatory surveillance accord as criminal security accords, issuing accord must be reasonable, accountable and with regards to propriety. And issuing an inappropriate secure accord will cause condemnation of the judge who issued it. (Waver 250 new codes)
of delivering necessary assurance to redress, the justice can just rely on issuance of judicatory surveillance accord “. In case of infraction of the guilty person from performing the independent surveillance accord, the accord mentioned will change to appropriate secure accord.
We can say that , essential difference between criminal secure accords in the new codes with judicatory surveillance accord according to new codes are, the secure accords are issued to make the guilty available and stop his/her escape .when judicatory surveillance accord is issued to reform the guilty himself. Also securing the right of the lost person as a common aim, has been defined between the two accords of secure and criminal surveillance.
Sometimes Tasks related to judicatory surveillance are related to replacing freedom of the criminal that is done to stop the criminal from escaping and sometimes these tasks are defined because of securing the presence of the guilty person in case of calling from everyone who has the competence and are defined by the interrogator who defines the freedom and interdict. In addition to it tasks related to relationships that the guilty person may have, are placed in this group.
Judicatory controlling actions and necessities related to that are taking place with the aim of supporting the guilty and retraining him and also supporting society and victims of the criminal. General principle is that criminals should be free in the time of primary investigation and just be limited in cases that has been specified in the law. Then the interrogator will issue the juridical surveillance according to principles above. Juridical surveillance accords are different, and in all of them some commitments and tasks are imposed on the criminal, that interrogator should define them to the person, and there is no common impose or group impose to all the criminals under the surveillance .from the other side, the interrogator just can impose the definite commitments to the criminal according to the crime being legal.
In case of surveillance accord due to prohibition (a.b.c.d), there must be a relation between the crime committed and the prohibited act. Necessity of considering this relation arise from main proportion of juridical surveillance accord that is mentioned in article 250. also we should say that juridical surveillance accord are issued for a specific time and in the time of issuing them, this time should be specified accurately. The time specified should not defined with things or materials that their occurrence time is not definite. (Like, “till the end of investigation” or “till staring the sentence”. By the way, credible time of prohibition of crossing the border in (e) will be related to article 248.
All the juridical surveillance accords can be protested. If these accords are issued by the interrogator, court of justice in investigating the protest, mentioned court will be in article 271. And if they issued by the court, the investigation reference, will be the provinces revisal court.
Description And Defining The Secure Accord
Secure in word, means to put into safe and welfare and in terms means guaranty and assurance. Secure accord is an accord that provides an assurance to the one who wants. (Jafari lang roodi, 2009, p. 133-134). Accord, is a juridical decision that is issued from the justice of peace while primary investigations and doing the investigation and in exceptional in the court and while doing the trial. This decision may consider the culprit, others or their things and properties. (Ashoori 2009. P. 67). In the previous laws of principal code there is no statue directly mentioning the (secure the rights of the person who has lost) as one of the main intentions in issuing the accords. Noting this case, according to progress of aspects considering complementary justice and development of …….has happened in national rules of countries and international documents. We should consider that generally these accords should be investigated immediately after “realization of the charge and necessary investigation, in case of having enough evidences” by the interrogator. As in article 132 I just pointed to “realizing the charge”. According to this, statuary 217 of code of criminal procedures, legislator has put some duties on the interrogator to do general investigation and issue one of the accords when there was enough evidences. It’s obvious that phraseology of previous code of article 132, was such that you will understand that the interrogator immediately after realization of charge and without any need to investigate and even having enough evidences, was supposed to issue a secure accord.
Kinds Of Secure Accords
In chapter seven part two of code of criminal procedures 2013, in article 217, number of secure accords in relation to records has a double increase. I article 132 former code of criminal procedure, to 5 case of criminal secure accords and in article13, it noted to the accord of prohibition of the guilty from crossing the border. Rest, it has mentioned to tenfold accords of article 217. It is obvious that the accords below are limited and the judge in the authority can’t adopt any secure except in accords mentioned in the recent article.
Obligation of being present with parole
and profitable. This accord could be effective for the people who worth their honor and prestige and have excellent behavior (Akhoondi, 2008, p.145).
Necessity to be present with specified payment that is required
This accord is one of the efficient accords in Iran laws.an because of having so many advantages that it have ,has been considered and preferred in relation to the previous accord .but it has a great disadvantage that wealthy people can deal with it easily bur poor people will take violent accords such as provisional interdict.
Necessity to not to cross the juridical district with parole
However the codes have not mentioned to this accord, but for the first time in 1335 was entered in code of criminal procedures.
Necessity to not to cross the juridical district with specified money that is required
One of new accords is such that by defining a specific money, they want the criminal to not to leave the judicial district till making the dossier definite. Criminal principal trial rule, has introduced the necessity accords to stop crossing the borders of the juridical district. In previous times of ruling code of criminal procedures (2008-2013), however this accord was not in the category of accords definite by the legislator, but in action, justice were performing it.
Necessity to introduce yourself weekly or monthly to the judicial court or discipliner with defining payment
Necessity with issuing this accord, the criminal obliges to introduce her/him self-weekly or monthly to judicial court or discipliner. As this kind of secure causes freedom of the criminal although will make you assure of the criminal being available. In performing this accord when the criminal is obliged to introduce himself to the judicial court or the discipliner in the different times, by being in such a places in different times, the criminal will be busy mentally and physically, and as a result will feel himself more sinful, as a consequence will decrease his/her willingness to commit a crime in the future. In addition to this , meanwhile, from one aspect it will stop the crime and from other side of it, will make the criminal to gain more information from the justice and better defend himself although will be more available to the judicial references.
Necessity about civil services or military services to be present with defining necessary payment, with accepting form criminal and after getting payment guaranty from their salary from the organization related
Influence and credibility that people have in their work place specially works related to the government, is a good base to put limitations and considering limitations that will do to the person, it will define the aims of accords. However according to legal regulations in performing civil law, we can’t take the money all in once from the salary of governments employees, rather in case of trespass from accomplishing contents of the accord, it will be done with installment .having problems before head in the office in accepting the criminal in the organization and against being single in this accord (making the criminal regretful from the aspect of economy) is one of the reasons using this accord.
Prohibition from exiting the home or residence located with agreement of the criminal and with specifying necessary payment using surveillance via electronic equipment or without surveillance with this equipment.
Electronic monitoring system that nowadays helps judicial system in majority of countries. For the first time introduced by Dr. Ralph Schwitzgebel at Harvard University, and in the beginning of the decade in 1980, an American judge used electronic cuff toward one of his criminals (Black and Smith 2003). When this technology were used for the first time we were worried if this mentioned system will control the criminal continuously , will results in breaking the rights of the criminals. Considering oppositions and worries, nowadays this technology has been applied widespread, and the criminals prefer this kind of monitoring to kinds of secure accords and juridical surveillance in the same category. This accord is rougher than bail accord or guaranty accord and sometimes it is placed in the level of weak accords, then the critic posed to its place in the accord between the accords of article 217 that basically have been adjusted by the severity of the accord, cannot be accepted wholly.
Bail with specifying bail payment
Accepting guaranties such as cash, bond, good
After provisional interdict accord, guaranty accord is counted as the severest secure accord, this accord also was used in case of individuals without deference or with low salary, but because of so many changes in social and cultural decorum and rolling distrust, using this accord is decreasing .in French law “assurance installment “is predicted for individuals with low level of salary. (Ashoori, 2009, p.188).
Provisional interdict with regards to legal requirements
Interdict, is counted as the severest secure accord. And because of this, it needs more considerations in performing the interdict about observing the innocence tenet, fair trial, and specially weapon equality as one of the rules of fair trial. Using terms such as (reasonable mistrust” and “necessary reasonable aspects” in European human rights convention is counted in this type of conditions and provisions. Human rights committee has advised that the interdict before trial should be exceptionally and transient as far as possible.
Guessing to be innocent as far as the crime is not proved , is the base and sole of criminal trial system.(Ashoori 2009) interdict of the suspect without any rational reason, is an arrow to the heart of trial system.(prosecutor V. Akayesu, 1998: para470). Making the interdict reasonable before issuing the sentence, needs some proof evident, and negligence in relying on suitable evidences, will make the arrest intractable. (Smith, 2009, p.299). Because of the reasons mentioned above, codes of criminal procedures has put the basis on not to issue interdict accord, and has deleted obligatory provision interdict that were possible in the previous codes, and issuing the accord of interdict is allowable in 5 provision in article 237.
“supposing freedom until trial time” as a general rule , shows this essential subject that criminals with criminal guilt's that have not been sentenced yet, should not be jailed(fair trial,2007,p.45). Provisional interdict can cause many legal, psychological, and social problems. Provisional interdict makes the individual to be obliged to be real criminal, that it is so hard to peace with the assumption of being innocent (Pradel and coworkers, 2014, p.484). One of the aims of the variety in accords and creating an institute for juridical surveillance, is avoiding from issuing interdict accord for the culprits: especially with so many errors in justice that according to specification from the legislator, this errors, will cause the recompense of the loss to the culprit.
Juridical Surveillance Accords
From the important new installations that the legislator has put in the code of criminal procedures, are accords that can be issued in type of “juridical surveillance”. Adjusting rules that codes have defined them, in addition to the capability of this accords to be issued simultaneously with secure accords, also in some cases they can be issued independently as a secure accord.
“ juridical monitoring accords” for the first time in june17,1970 , entered into criminal system of French .in French , the time they use interdict accord that juridical surveillance accords does not seem enough (Ashoori,2007. P.173)
In article 138 from French code of procedures approved in january4, 1993, with regards to propriety, for the judge in authority to make the code of criminals more specific to every person, there are 16 accords to be selected. some of these accords that is not mentioned to them as secure accords in the code of criminal procedures , are as below: 1) prohibition from exiting home or specified resident 2)prohibition from crossing some places 3) necessity to accept and follow to be monitored when doing job or educational programs 4) reposit identity documents , specially passport to the judge office in authority or police station 5) prohibition from greeting some people 6) performing some medical test, specially to quit addiction 7) Assurance installment The differences between criminal secure accords with juridical surveillance accords are as below:
1-issuing secure accords, should happen immediately after realizing the charge. But there is no necessity to issue juridical surveillance accord immediately after realizing the charge ,enough scrutinizing and issuing the secure accord , however , contents of the article related to the subject and phraseology of article 247 , code of criminal procedures determinates allowance to issue surveillance accords, but it is after realizing the charge and enough scrutinizing and beside secure accord.
2-by the way issuing secure accord is a duty of the interrogator, but issuing juridical surveillance accords , is optional.( in exception according to waver 1 from article 247, in crimes which have punishment(Ta zir) levels 7 and 8, in case of presenting enough secure to recompense the lost , juridical status can be satisfied to issue juridical surveillance accord)
3-writing the term” specific period” in the article 247 about surveillance accords shows the time period in this cases but normally in secure accords , end of the period is not defined.
4-juridical surveillance accords can be considered as a complementary order beside with secure accords. According to this, not to issuing juridical surveillance accord after realizing the charge and enough scrutinizing, is allowed but not to issuing secure accord after the steps mentioned, is an discord of the rules (except in waver1 article 247).
are in article 217, but juridical surveillance accord in this case can include one or more of five fold orders in article 247.
6-accepting a secure that is not sufficient can cause disciplinary condemnation more than level four, but the legislator has not considered performing guarantee in case of issuing insufficient juridical surveillance accords.
Juridical surveillance accords have no longer history in Iran, and it has not mentioned in our legal texts. But about some cases of that like children procedures we can find some cases of them. Legal institution of juridical surveillance from the aspects of some necessities and guarantees and also from the aspect of adjusting with installations accepted socially with surveillance suspension are so like each other but the difference between these two institute tells that surveillance suspension will done about a person that his crime has been proved, but juridical surveillance is about a person that at first or during the scrutinize , just we were suspicious about him being criminal.
According to limitations of orders of article 247 in shape of juridical surveillance accord, the interrogator according to “being legal the criminal laws” just can impose the criminal the guaranties defined in the article.
Orders mentioned are as below:
To introduce their selves periodically to places or institutes defined by the interrogator Stop driving motors
Prohibition of being occupied in works related to the committed crime. Prohibition of keeping weapons with legal justification
Prohibition of crossing the border.
Staring to treat psychological and behavioral disorders , that was in this law but has been omitted during approbation , because part (a) in general, can include this case and send to disuse centers and things like this.
CONCLUSION
It is obvious that along with progressing societies, development in technology and changes and complexities created in social decorum, widespread attention to obey rules accepted by human rights, monitoring and surveillance institutions should be changed and varied. Inflation in population of prisons , against issuing some secures with principles accepted by legal procedures , accepting the right of compensating the lost to innocent culprits and its huge financial burden to the countries juridical system, protracting the trials, inflation in the number of criminal dossiers, and decrease attention in issuing the sentence and as a result, increasing judicial mistakes, more attention to the rights of they who have lost in defining the type of accord, paying attention to principle of making secure and specialize it, increasing double the number of secure accords wholly and approval of issuing juridical surveillance accord along with secure accords, make the legislator to consider the contents of code of procedures 1290 and its amendments in 1335 and also French code of procedure, to apply some changes and amendments in the code of procedures 2013 .
However, Institution of “juridical surveillance accord” has a long history in other countries, but it is new in law system of Iran.
At first step This institution along with tenfold secure accords and with creating a widespread authorities , can limit provisional interdict and according to this stop its unpleasant conclusion and at the next step makes it so adjusted the relation between secure propriety and personalizing it, however experiences have proved that specially in criminal procedures , quality of performing is determinant .
REFERENCES
Akhoondi, M. (2008), criminal procedures, volume 2, edition5, organization of ministry of print and edition, Tehran, Iran.
Ashoori, M. (2009), criminal justice, “innocence and its effects in works related to criminals”, Ganje danesh, Tehran.
Ashoori, M. (2009), Criminal Procedures, Volume 2, Edition8, Samt Publication, Tehran. Jafari, Langroodi, M. J. (2009) Law terminology, edition10, Tehran, Ganj e Daanesh. Javanmard, B. (2015). Necessitates of criminal procedures, Javdaneh Publication, Tehran. Javanmard, B. (2015). Trial procedures in Iran's criminal laws, Behnami publications, Tehran. Khaleqi, A. (2013) criminal procedures, Shahre Danesh Publication, Tehran.
Matt Black and G Smith (2003), Electronic monitoring in the criminal justice system, Australian Institute of criminology, http://www.aic.gov.au/publications/current%20 series/tandi/241-260/tandi254.htm
Pradel, Zhan, Korestense, Gert, Fermlen, (2014). Criminal Law Of European Council, Translated By Mohammad Ashoori, Tehran,Khorsandi.
Salimi, S., Bakhshi zade Ahari, P. (2014) analyzing article to article of Code of criminal procedures of 2013 in comparison to previous laws, Javdaneh Publication, Tehran.
Smith, R. (2009). Rules of human international rights, translated by, fatemeh keyhanloo, Tehrans political science and law university, Tehran.
Taha, F., Ashrafi, L. (2007), Fair justice, Mizan Publication, Tehran.
