Is the possession of alcoholic beverages considered contraband?

According to the report of online economy, the meeting of the Supreme Court of the Supreme Court regarding the case of unity of action row 1402/12 at 8 o’clock on Tuesday, dated 09/14/1402, was chaired by Hojjatul Islam and Muslims, Mr. Mohammad Jaafar Mantaziri, the honorable president of the Supreme Court, with the presence of Hojjatul Islam and The honorable Muslims Mr. Seyed Mohsen Mousavi, the honorable representative of the Attorney General of the country and with the participation of the presidents, advisers and deputy members of all branches of the Supreme Court of the country, was formed in the hall of the general board and after reciting verses from the words of God, reading the report of the case and proposing and considering different opinions. Participating members regarding this case and listening to the opinion of the honorable representative of the Attorney General of the country, which is reflected in the following order, led to the issuance of the unanimous judgment of judicial procedure No. 839-1402-09-14.

A) Case report

It is recalled that, based on the opinions received by this deputy, considering that the 20th and 29th branches of the Supreme Court of the country have issued different opinions regarding the competent authority to deal with the charge of possession of foreign alcoholic beverages, in order to raise the issue in the general board of the court. His Excellency, the report is presented as follows:

A) According to the document number 140109390009849401 – 8/21/1401, Branch 122 of Isfahan Criminal Court No. 2, regarding the accusation of Mr. Abuzar… for possession of 2 liters of foreign alcoholic beverages (prohibited contraband), has given the following opinion:

“… considering that the subject of the charge is foreign and prohibited goods and considering the law amending the law on combating smuggling of goods and currency approved on 20/1/1401[۱۰/۱۱/۱۴۰۰] and the amendments mentioned in Note 5 of Article 63 of the aforementioned law approved on 3/10/1392 and the amendments on 20/1/1401[۱۰/۱۱/۱۴۰۰] And the extension of the jurisdiction of the Revolutionary Courts in dealing with smuggling, as stipulated in Article 44 of the Maral-Zakr Law, to the equivalent of smuggling (both carrying and keeping, buying and offering for sale, or…smuggled goods), this court believes that the opinions of Vahdat Royeh 9/1393-736 4 and 727 – 9/21/1391 and 751 – 5/5/1395 and 809 – 1/17/1400 of the Supreme Court, according to the aforementioned amendments, expressly overruled and dealt with the matter outside the inherent jurisdiction of the public courts and within the jurisdiction It is inherent in revolutionary courts. However, regardless of the truth or severity of the issue, this court issues its inherent incompetence to the inherent jurisdiction of the Revolutionary Court based on Article 11 paragraph A of the Islamic Penal Code approved in 1392 and Articles 303 and 340 of the aforementioned law. The issued vote is final.”

By sending the case to the Islamic Revolution Court, the fourth branch of the Islamic Revolution Court of Isfahan has given the following decision, according to the document number 140109390010548476-1401/9/1:

“… considering that the issue is the possession of contraband goods and the mere possession of foreign alcoholic beverages, although as one of the examples of prohibited goods, is subject to punishment, but in terms of jurisdiction, it is outside the scope of Article 44 of the Law on Combating Smuggling of Goods and Currency approved in 1392, and considering Due to the exceptional jurisdiction of the Revolutionary Court, dealing with the mentioned offense is within the jurisdiction of the Criminal Court II. Therefore, based on Article 1 of the Anti-Smuggling of Goods and Currency Law approved in 1392 with subsequent amendments and the unanimous decision numbered 17/1400-809, this court issues and announces the lack of jurisdiction to the jurisdiction and competence of the criminal courts of Isfahan.

By sending the case to the Supreme Court and by referring it to the 20th branch, this branch has given the following decision according to the decree number 140106390000729912 – 9/29/1401:

“… with regard to the definition of “goods smuggling” in paragraph (a) of Article 1 of the Law on Combating Goods and Currency Smuggling approved in 1392 with subsequent amendments and the separation of the criminal headings of “smuggling” and “keeping contraband goods” in Article 22 of this law and taking into account That in Article 44 of the same law, dealing with the crimes of organized and professional smuggling of goods and currency, smuggling of prohibited goods and smuggling of goods and currency, requires imprisonment or dismissal from government services under the jurisdiction of the Prosecutor’s Office and the Revolutionary Court, and only for the possession of foreign alcoholic beverages, although According to Note 4 of Article 22 of the same law, it is mentioned as one of the examples of prohibited goods, a crime and subject to the prescribed punishment in Article 22 of the law, but in terms of jurisdiction, it is outside the scope of Article 44 of the same law, and in Article 63 of the said law, all orders and The general rules related to the crimes and violations of this law, apart from the foreseen cases, have been announced in accordance with the Islamic Penal Code, and the cases of jurisdiction have not been mentioned, and the rulings, effects and punishments of the mentioned trafficking have been made valid in some legal articles, including Article 44 regarding all crimes and violations subject to this law, except for Note 5 of Article 2 repeatedly as described in Note 5 of Article 63 of the Marqom Law, cannot create legal authority for the Revolutionary Court in dealing with the possession of foreign alcoholic beverages and in the legislative literature of the system According to Iranian law, the note does not have an independent existence and is complementary and subordinate to the provision in the main article and should not be interpreted separately, and the note should be considered as a reference to the main article, and it seems that the mentioned provisions refer to other parts of Article 44 of the aforementioned law, including A case that has multiple defendants and the prosecution of one of them is within the competence of the judicial authorities, the accusations of other persons are also dealt with in these authorities, and the Prosecutor’s Office and the Revolutionary Court also have jurisdiction in the cases provided for in article 50 repeated 2. In addition to Article 51 of the same law, in all cases where the terms and conditions of the proceedings are not provided for in this law, they are treated according to the Criminal Procedure Law, and because according to Article 301 of the Criminal Procedure Law approved in 1392, the jurisdiction of the criminal court is two, and the proceedings and jurisdiction The Revolutionary Court is exceptional and unique to the cases specified in the law, and in cases where the legislator considers the jurisdiction of the Revolutionary Court, it must be specified in the laws that there is no specification in the aforementioned law regarding the subject of the dispute, and in cases of doubt It should be enough to be sure and the consensus decision number 17/1400-800-1400/809 of the Supreme Court, which considered the handling of the offense of possession of smuggled alcoholic beverages as a criminal jurisdiction, and Note 5 under Article 63 of the Law on Combating Smuggling of Goods and The revised currency of 10/11/1400 basically does not imply the invalidity of the said unanimous vote. According to the documents and according to Article 28 of the Law of Procedure of Public Courts and the Revolution in Civil Affairs, approved in 1999, it resolves the dispute by confirming the jurisdiction of Branch 122 of the Criminal Court of the two cities of Isfahan.

b) According to the document number 140250390000306104 – 1/30/1402, Branch 102 of the Criminal Court of Kermanshah, regarding the accusation of Mr. 1- Amir Reza… 2- Saeed… for participating in the transportation of foreign alcoholic beverages such as whiskey in the amount of 330 ml. Voted as follows:

“… Considering that according to… Article 42 of the Law on Amending the Law on Smuggling of Goods and Currency approved 10/11/1400, Article 63 of the Law on Smuggling of Goods and Currency approved on 3/10/1392 amends and states [تبصره ۵ الحاقی] The rulings, effects and punishments of smuggling mentioned in articles 3, 5, 6, 8 to [۱۲], 16, 19, 20, 30 to 32, 34 to 36, 38 to 50, 53 to 60, 65 to 68, 70, 71, 73, 74 and 77 of this law and the notes of these articles regarding all crimes and violations of this The law is current except for Note 5 of Article 2) In view of the above, the aforementioned article, while implicitly revoking the unanimous decision No. 809-1400/17/1, which considered the handling of the offense of possession of foreign alcoholic beverages within the jurisdiction of the Criminal Court II, this According to article 301 and paragraph

By sending the case to the Islamic Revolution Court, the first branch of the Kermanshah Islamic Revolution Court has given the following decision, according to the decree number 140250390000440495-1402/2/10:

“… due to the fact that the open liquor has been moved inside the country and with such a definition, the subject of Clause A of Article 1 of the Law on Combating Smuggling of Goods and Currency approved in 1392, which stipulates that any act or omission that causes a violation of the legal formalities related to the entry and the export of goods and foreign currency, and according to this law or other laws, it is considered smuggling and the punishment is determined for it, it will be discovered at the points of entry or any part of the country, even the place of its supply in the domestic market, because assuming the entry of the said discoveries First of all, these drinks were not imported from the entry point, and secondly, their entry was not due to the violation of legal formalities. Since the mere storage or transportation of goods, although prohibited, from one place to another inside the country, if accompanied by documents that indicate smuggling, is outside the scope of Article 44 of the aforementioned law, and considering that it is not included in the scope of Article 50, 2 of the Law Amendment Law The fight against smuggling of goods and currency approved by the Islamic Council on 10/11/1400 was also outside and according to the unanimous vote of the Supreme Court of the Supreme Court of Iran on the jurisdiction of the courts… Reference to Article 301 of the Law of Procedure [کیفری] The principle on the jurisdiction of the criminal courts is two, and the cases of the jurisdiction of the revolutionary courts are exceptional, and those limited cases have also been counted, therefore, by not accepting the jurisdiction based on Article 28 of the Law of Procedure of the General and Revolutionary Courts in Civil Affairs, due to the inherent nature of the dispute, the case was dismissed. He sends to the Supreme Court to resolve the dispute. This vote is final.”

By sending the case to the Supreme Court and by referring it to the twenty-ninth branch, this branch has given the following decision according to the document number 140206390000173039-1402/3/6:

“… considering the above-mentioned report and considering the opinions issued by the two judicial authorities mentioned in the report and considering the totality of documents and contents of the case based on Article 28 of the Law of Procedure [دادگاه‌های عمومی و انقلاب در امور] Madani, while violating Resolution No. 440495 dated 2/10/1402 issued by the first branch of the Islamic Revolution Court of Kermanshah city and confirming the decree No. 306104 dated 1/30/1402 issued by the 102nd branch of the Criminal Court of Kermanshah, the competent judicial authority of the Revolution Court, is hereby processed. Disputes are resolved between two authorities.

As can be seen, the 20th and 29th branches of the Supreme Court regarding the competent authority to deal with the charge of possession of foreign alcoholic beverages by inferring from Note 5 of Article 63 of the Addendum to the Law on Combating Smuggling of Goods and Currency approved 10/11/1400 and repealing or not repealing The unanimous decision of 17/1400-1400-809 of the Supreme Court has a difference of opinion in such a way that the 20th branch of the Criminal Court 2 is competent, but the 29th branch has considered the Revolutionary Court to be competent in the same case.

Therefore, in the implementation of Article 471 of the Criminal Procedure Law, in order to establish the unity of the judicial procedure, it is requested to raise the issue in the meeting of the General Board of the Supreme Court.

Gholamreza Ansari – Judicial Deputy of the Supreme Court of the country in public affairs
b) The theory of the representative of the Attorney General of the country

Respectfully, regarding the case of unity of judicial procedure, row 1402/12 of the Supreme Court of the Supreme Court, on behalf of the respected Attorney General, I express my opinion as follows:

According to the submitted report, it can be seen that there is a difference of opinion between the 20th and 29th branches of the Supreme Court regarding the competent authority to deal with the charge of possession of foreign alcoholic beverages. In such a way that the 20th branch of the Supreme Court considered the Criminal Court 2 as competent, but the 29th branch considered the Islamic Revolution Court as competent in the same case. Therefore, after examining the submitted report and taking into account that the legislator stated according to Article 301 of the Criminal Procedure Law, the two criminal courts have the jurisdiction to deal with all crimes except those that are under the jurisdiction of another authority according to the law, and considering that the jurisdiction of the Revolutionary Court in Dealing with crimes according to Article 303 of the Marqom Law is limited to the cases specified in this legal regulation and other cases that are foreseen in the jurisdiction of this court by special laws, therefore, according to the rule, in cases of doubt in the jurisdiction, it should be sufficient to be sure and agreed upon. . It should be noted that the law amending the law on combating smuggling of goods and currency approved on 10/11/1400 did not amend the sentence stipulated in article 44 regarding the crimes of this law, which is within the jurisdiction of the Revolutionary Court, and in article 50, repeated (2) of the addendum only It has counted the crimes related to the crimes under the jurisdiction of the Revolutionary Court and has not specified the jurisdiction of the Islamic Revolutionary Court to deal with the crime of possession of foreign alcoholic beverages and because in this law, another ruling contradicts the provisions of the unanimous decision 809 dated 1/17/1400 has not been enacted and considering the exceptional jurisdiction of the Revolutionary Court, the provisions of the aforementioned unanimous decision are still valid and the detailed decision of the 20th branch of the Supreme Court and the evaluation and analysis of this branch of the legal documents of the subject are in accordance It is legal and approved.
c) Unanimity decision No. 839-1402/09/14 of the Supreme Court of the country

According to the 159th article of the Constitution of the Islamic Republic of Iran, the formation and determination of the jurisdiction of the courts is subject to the law, therefore, the creation of any jurisdiction or its development requires a legal declaration, and in cases of doubt, it is sufficient to be certain, and according to the separation of the titles Criminalization of “smuggling” and “possession of contraband goods” in Article 22 of the Law on Combating Smuggling of Goods and Currency approved in 2013 with subsequent amendments, the ruling provided in Article 44 of this law regarding the competence of the Revolutionary Court, only refers to the crime of smuggling with the same definition in this law and it does not apply to the cases where individuals commit the possession of contraband goods, including foreign alcoholic beverages, in a partial manner, and it is not an example of goods smuggling. On the other hand, the mention of the word “rules” in Note 5 to Article 63 of the same law (approved on 10/11/1400) is not useful for determining “jurisdiction” and does not overrule the unanimous decision of the Supreme Court 17/17/1400-1400-809. In such cases, action is taken according to Article 51 of the aforementioned law and the provisions of the Criminal Procedure Law. As a result, dealing with the offense of possession of foreign alcoholic beverages with the above description is within the jurisdiction of the Criminal Court II. Accordingly, the decision of the 20th branch of the Supreme Court, which is in accordance with this opinion, is recognized as correct and legal by the majority of the members of the general board. According to Article 471 of the Criminal Procedure Law approved in 1392, with subsequent amendments and additions, this decision is mandatory for the branches of the Supreme Court, courts and other authorities, whether judicial or otherwise, in similar cases.
The General Board of the Supreme Court