[PROVISIONAL TRANSLATION FROM PERSIAN]

 

[Translator’s notes appear in square brackets]

[Personal information has been redacted.]

 

[Emblem]

Department of Governmental Discretionary Punishments

Islamic Republic of Iran

Ministry of Justice

Governmental Discretionary Punishments Main Office of Central Province

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

 

Date: -----

Number: -----

Enclosures: -----

Court Order

In the Name of God

Case reference: 3819139409000021

Court Order Number: 38021394000340

Date: 22 Dey 1394 [12 January 2016]

Appellant: Mr. Laghaollah Baghaie, son of Khodagholi, founder and technical manager of Donyaye Eynak Optical [World of Optics], represented by Mr. Pouria Farghadani, lawyer and legal adviser of judicial system; address: beginning of Azadi Avenue, Khomein

Respondent: University of Medical Sciences and Treatment Services, Central Province

Subject of Appeal: to revoke Court Order number 38201394000585 dated 29 Azar 1394 [20 December 2015] issued at Branch 1 of the Preliminary Governmental Discretionary Punishment of Khomein

Branch Investigative Commission: (Mahmoud Esmaili: head of the Branch), (Saied Fallah: branch member), (Saied Zahiri: branch member)

Administered by: Branch 2 Appeal Department of Governmental Discretionary Punishments of Central Province

Procedure Synopsis: On 22 Dey 1394 [12 January 2016] a special session of Branch 2 of the Appeal Department of Governmental Discretionary Punishments of Central Province was convened, presided over by the undersigned, to review the above Case Reference regarding charges against Donyaye Eynak Optical.

The Office of Supervision of Treatments of the Medical Sciences University reports the result of its investigation to the Commission for Article 11, that the aforementioned unit is without a valid work permit. The offence of the above-mentioned by the said source is stated in report number 49837S/2/94/P, dated 18 Aban 1394 [9 November 2015], titled Governmental Discretionary Punishment of Khomein, as the establishment of an illegal medical institution by unqualified, non-specialist individuals, failing to follow Article 1 of the Governmental Discretionary [Punishments] Act in matters pertaining to health and treatment.

The court division to which the case is referred, after routine judicial procedures, ultimately convicts the above-mentioned, subject to the objection of the court order to closure of the institution; however, parts of the cited punishment in the Act are mentioned without legal references. The defendant has objected to the court order and appealed within the prescribed time through his chosen lawyer.

Following receipt of the request, the file was referred to the head of the Appeal Division as recorded in documents 31 and 32 of the file. As the investigation was deemed incomplete, time was set for research and representatives were announced. The report in the section of assistance to treatment was prepared. Medical Sciences University Security and the Appellant were summoned. However, the hearing was held without the presence of the security representative and supplementary research was conducted. The unjustified absence of the above-mentioned was recorded in the minutes dated 20 Dey 1394 [10 January 2016] on page 38 of the file. With careful consideration of all file records and documents and the defence statement of the Appellant, and after listening to the supplementary statements and explanations of the representatives, the Branch Commission concludes the hearing and with reliance on the Almighty God’s assistance and its own conscience and honour, renders a decision as follows.

Branch Decision

Regarding the appeal request of Mr. Laghaollah Baghaei, son of Khodagholi, founder and technical manager of Donyaye Eynak Optical, represented by Mr. Pouria Farghadani, lawyer and legal adviser of the judicial system of the above address regarding Court Order number 38201394000585, dated 29 Azar 1394 [20 December 2015], issued at Branch 1 of the preliminary Governmental Discretionary Punishment of Khomein, subsequent to review of all file records and documents and the defence of the above-mentioned as recorded in the minutes and papers submitted by his chosen lawyer, firstly: the Appellant submitted multiple expert qualified documents noted in pages 13 to16 of the file, obtained from authorized sources, certified by the Ministry of Health, and he had been credibly active in this profession for many years. [For this reason], the head of the Office of Supervision on Treatments of the University of Medical Sciences of the time endorsed him as the approved optician in letter number 16883 S 88/2/P, dated 28 Tir 1388 [19 July 2009] (titled Khomein Health Network). Therefore, the optician is considered a specialist and is approved by the Ministry of Health, and with applicable proof as per Article 1 of the Governmental Discretionary Act in Matters of Health and Treatment.

Secondly: the above-mentioned has had work permit number 103/B since 1369 [1990/1991] as an optician specialist, which was renewed in 1379 [2000/2001] for ten years (recorded on page 53 of the file). Since, according to order 53, dated 3 Tir 1374 [24 June 1995] of the Public Court of Administrative Justice, optometry is clearly not considered a medical profession, the said work permit is valid and was issued within legal limits; however, subsequent to issuance of different orders by authorities regarding the same subject, the Public Court Commission in court orders number 303 and 304, dated 15 Mordad 1385 [6 August 2006], declared optometry to be a medical profession, but work permits issued up to the date of issuance of the said order were valid; therefore, the court, [decided that] the said orders imply that specialists who obtained the permits prior to 1385 [2006/2007] from other sources in order to practice do not need to obtain a permit from the Ministry of Health, Treatments and Medical Education. In the subject at hand, the above-mentioned is already considered an expert.

Thirdly: the source of the offence in the Office of Treatment Supervision report is as follows: “Referring to the confidential letter of the university’s security, regarding non-renewal of the permit of the said institution” and the treatment deputy has also in a similar letter, in response to the Office of Supervision and Accreditation Council for Treatment Affairs of the Ministry, in a similar writing and statement, the relevant ministry states the reason for non-renewal of the permit is the confidential letter by the Security states that it is non-advisable to renew the permit; whereas subsequent to said description in Article 2, there was no need to obtain a permit through the University of Medical Sciences. The reason for this is not clear in the file. In completing the investigation, the Security Office of Medical University representative was summoned to the Branch as an expert, but he declined to attend the hearing in the presence of the Appellant and his counsel, as well as representatives of the treatment deputy, and he referred the explanation to a separate meeting which is not admissible as far as the Branch is concerned and has no legal merit. Moreover, based on Articles 3 (paragraph 9 and 14), 19, 20, 26, and 28 of the Constitution, the government is obliged to remove unjust discrimination and provide justice for all in material and spiritual matters.

All are equal in the site of the law. Everyone has the right to choose what is not against Islamic standards and the public interest or the right of others. The government is obliged to create opportunities to work and provide material for all according to the needs of the society; therefore, only by administrative correspondence, without submission of legal and sufficient documents, one cannot prevent anyone from work. Nevertheless, assuming non-validation of the work permit of the above-mentioned individual, as indicated in the court order, and the existence of any prohibition for his work institution, considering the decision of the Public Commission as explained above, regarding the above-mentioned, the University of Medical Sciences is not allowed to prevent him from work; according to relevant laws, he can obtain a permit from other authorities for his business. Therefore, the Branch determines the Court Order of the object of protest pertaining to closure of the said business as invalid and contrary to legal criteria and voids it as per paragraph P of Article 455 of the Code of Criminal Procedures, ratified in 1392 [2013/2014], pursuant to Articles 4 and 265 of the same and issues an order for the non-prosecution of the said individual. Moreover, as recommended by the recent Article 457 of the said Act, proper notice will be given following the laws and regulations for investigation to the preliminary Branch.

This decision is made in person and it is binding and enforceable. It is enjoined that this file, after registration of the results of the decision, be removed from the records, following the regulations.

Mahmoud Esmaili,

Head of the Second Appeal Branch

Saied Fallah,

Second Appeal Branch Member

Saied Zahiri,

Second Appeal Branch Member

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[Stamp:] Certified copy [signature]