[PROVISIONAL TRANSLATION FROM PERSIAN]

 

[Translator’s notes appear in square brackets]

[Personal information has been redacted.]

 

[Emblem]

Court of Administrative Justice

“Do not follow (your) low desires, lest you deviate”

Branch 32 of the Court of Administrative Justice (previously Branch 5)

Court Order Number: 9609970900503689

Date of Issuance: 26 Bahman 1396 [15 February 2018]

File number: 9509980900601610

Branch Archival Reference: 963095

 

Court Order

Appellants: Messrs. and Mmes. Farzad Sabeti Bur Kheyli, Fariborz Sanaie, Rezvaneh Sami’ie Bur Kheyli, Soheil Haghdoust, Shahin Akbari Ameri, Kourosh Ahmadzadehgan Shahmirzadi, Alaeddin Mirzaie, Sohrab Laghaie, Zahra Golabian, Bahaoddin Samimi Darzikolaie, Adel Ataeian Kafshgarkolani, Changiz Derakhshanian, represented by Ms. Nasrin Sotoudeh

Appellee: Police Department of the Public Places Supervision Office of Qaemshahr

Subject of grievance and claim: Objection to sealing of the clients’ shops according to Addendum 1 of Article 10, Court of Administrative Justice Act.

1. Procedural Synopsis: The Appellants’ lawyer has submitted a claim to the Court requesting the above, which was referred to this Branch subsequent to registration. The [lawyer for the] above-mentioned has explained: 1- the clients are doing business in different trades in Qaemshahr (business permits of the clients with permit are enclosed). 2- On 11 and 12 of Aban this year [2 and 3 November 2017], the Department of Public Places, without showing any orders and without following proper legal procedures as [required by] the Trades Act, attempted to seal the business units of the clients. 3- As you are aware, paragraph B of Article 28 of the Trades Act, ratified in 1392 [2013] stipulates certain conditions for temporary closure of trades units, none of which apply to the clients. 4- The clients have been working in their businesses with good conduct―two testimonials are submitted as examples (enclosure 5). 5- According to Principle 14 of the Constitution, the government is obliged to treat people with good conduct and Islamic justice, and to respect their human rights. 6- Also, the clients have gone through all administrative procedures to procure their rights; attached please find the letter from the esteemed representative of the noble people of Qaemshahr (Enclosure 6). 7- In a step before the last to seal the shops which took place in Ordibehesht [April/May] of this year, the Department of Public Places got written undertakings from the shop owners on 31 Tir 1395 [21 June 2016], as announced by the clients, that they were obliged to inform the Department of Public Places a week before they attempted any closure. 8- The clients informed the Department of Public Places every step of the way regarding closures. 9- Subsequent to the said written undertaking and resultant agreement for the aforementioned units, the seals were removed and relevant shops were re-opened. 10- As the said written undertaking which is cited by the clients is a kind of agreement between the citizens and the government, it cannot be cancelled, because, according to religious teachings and the famous Hadith “Honour your contracts”, the Department of Public Places is obliged to honour the content of the contract that it entered into with the citizens. 11- Since the original undertakings were not given to the clients, please ask for the said undertakings for the Qaemshahr Department of Public Places to be reviewed.

Therefore, I request the review and issuance of an order regarding the complaint of the clients and re-opening of shops by the relevant authorities. In the first place, I request the order for temporary unsealing of the shops of the clients.

The judicial request and enclosures have been submitted to the respondents. The Disciplinary Command of Mazandaran Province has responded: 1- As is understood from the judicial request, the above-mentioned want to close their businesses on certain days in the year. 2- the issue was brought up at the Religions Commission of the Mazandaran Governorate, and, according to letter number [7958/11M/-2-7], the request was rejected (Enclosure 1). Moreover, the central public prosecutor of the province also decided on strict measures in this regard, as written in letter number 753/1005, dated 9 Aban 1395 [30 October 2016] (Enclosure 2). 3- Considering the above, it seems that the complaint and grievance was not addressed to the Properties Office Police Force of Qaemshahr, and measures taken were subsequent to decisions by high officials of the province and with their coordination. Therefore, as a result of non-relevance to the Department of the Public Places, the rejection of the complaint is requested. The file is now being reviewed in extraordinary session. Considering the request and documents and evidence, the hearing is concluded and in reliance on the Almighty God, a decision is issued as follows.

 

Decision

Pursuant to the explicit statement in section 2 of Article 28 of the National Trades Act, ratified on 24 Esfand 1382 [14 March 2004] (amended on 12 Shahrivar 1392 [3 September 2013]), any tradesperson whose business is closed can complain to the Supervisory Committee. The Supervisory Committee’s opinion, which is to be announced within a maximum of two weeks, is binding. In case of objection, the tradesperson can refer to the relevant judicial sources. Considering that the review of the Appellants’ grievance (objection to the closure of their business premises and the request to remove the seals) was initially within the jurisdiction of the City Supervisory Committee, and the Court of Administrative Justice has no jurisdiction of review and interference before the Supervisory Committee’s decision is announced, citing the above-mentioned addendum and Article 48 of the Code of Formation and Procedure of the Court of Administrative Justice, the decision of non-jurisdiction of this Branch is issued, and the jurisdiction is referred to Qaemshahr‘s Supervisory Committee. This decision is final according to precedent vote number 126, dated 15 Ordibehesht 1393 [5 May 2014] of the Public Commission of the Court of Administrative Justice.

 

Mahmoud Fereidounifard

Head of Branch 32 of the Court of Administrative Justice

 

Legal Documentation:

Addendum 2 - Any tradesperson whose business is closed can complain to the Supervisory Committee. The Supervisory Committee’s opinion, which will be announced within a maximum of two weeks, is binding. In case of objection, the tradesperson can refer to the relevant judicial sources. Article 48 – whenever reviewing complaints is within the jurisdiction of other judicial sources, the Court Branch will issue a non-jurisdiction order; the file will then be referred and the appellant will be notified. If the issue is under non-judicial jurisdiction, while the non-jurisdictional order is issued, the file will be referred to a competent source. The secondary resource is bound to investigate. Decision 126 – Considering that Article 48 of the Code of Formation and Procedure of the Court of Administrative Justice ratified in 1392 [2013] stipulates that in case a non-jurisdictional order is issued by a Branch of the Court of Administrative Justice, in competency of judicial sources or non-judicial, the issuing Branch issues the non-jurisdiction order of the file, refers it to a competent source and notifies the appellant. The said order means, with issuance of non-jurisdiction, the file will be referred to a competent source. The provision of non-jurisdiction does not deny the right of appeal. Therefore, the matter indicates the order in Article 65 of the said Act regarding provision of appeal for all decisions of the preliminary branches of Courts of Administrative Justice. Based on this, decisions of the Branch(es) regarding non-jurisdiction are not considered appealable; this is considered correct and in accordance with the law.

Signature of the issuer