Examining the writ of Evidence Preservation under Iranian Law
The evidence represented by each party in a lawsuit determines their success or failure in the case so their preparedness and protection is at high importance. With that said, Iran’s Best Lawyer team will examine the writ of “Preservation of Evidence” under Iranian Law in this article.
In court, the reasons and documents available to prove or disprove a claim, determine the fate of the case more than the facts of the story in the real world. By using the phrase “evidence” in law, we mean any documents, proof, or evidence that can be used to prove a claim which is called “Evidence in substantiation of claims”. In principle, the claimant or plaintiff must have documentation alongside the lawsuit they’ve raised in court, but the documentation may be lost, invalidated, or insufficient for different reasons. There have been many lawsuits in which the rightful party didn’t win the case only because of a lack of documentation and evidence.
For this, the Iranian legislator has provided a definition for Evidence and the writ of “Evidence Preservation” to protect it.
Definition and investigation of Evidence under Iranian law
Iran’s Civil Procedure Code (CPCI) In its tenth chapter under the title “Investigation of Evidence“, after defining the evidence, describes the different types of it in civil procedures and specifies how to investigate and examine them. This matter is examined in 8 topics from articles 194 to 294 which include: Generalities, confessions, documents (general materials, denials, and doubt, claims of forgery, dealing with the accuracy and authenticity of documents), certificates, site examination, and local investigation, reference to experts, oaths and judicial representation.
According to Article 194 of the CPCI: “Evidence is something that the parties to a lawsuit rely on to prove or defend their case.” While being practical there are some flaws in this definition so it should be interpreted correctly. Mere reference of the parties to a matter doesn’t make it evidence and must be cited in terms of legality, so in this sense what article 194 is defining is judicial evidence. Generally, evidence should be determined and specified by the law and after the presentation to judicial authorities creates an inner belief for the judge about that matter by shining light on different parts of the case.
One of the interesting facts about evidence in Iran’s jurisprudence is that a final verdict between two parties can be held against a third party as evidence but not against a plea of the matter adjudged.
Also according to the legal department of Justice administration’s opinion: “A lawsuit cannot be evidenced by an audio tape because even regardless of its capacity of being forged or containing imitated voice, it is not a reliable device.” Therefore, not every recorded audio can be presented to the court as evidence to prove a claim.
The writ of Evidence Preservation under Iranian law
According to Article 197 of the CPCI: “Based on the principle of freedom from suspicion (i.e. Presumption of guiltiness less), a party must prove their claim of debt or right against someone else, otherwise, a verdict of innocence will be issued with the defendant’s oath.” Therefore, the burden of proving an allegation, that is to prepare, provide and present the means and evidence to create an inner belief for the judge, is on the shoulder of who’s claiming it whether as claimant or defendant. So the process of collecting and presenting the evidence is one of the most important elements of case management and proving a claim, however, it might be not possible for a party to do this on their own or there’s a possibility of its loss.
The legal solution for this matter is safeguarding any citable evidence by issuing a writ of “Evidence Preservation”. The CPCI talks about this in articles 149 to 155.
According to Article 149 of the CPCI: “In cases where the beneficiary fears that it might be impossible to use their evidence for their lawsuit in the future, such as; Local investigations, obtaining information from informants, inquiry from experts and commercial registrations, use of on-site evidence and reasons withheld by the parties, they can ask the court to protect and preserve them. The purpose of protection and preservation here is to site visit, observe the evidence, and make a list of them.” Keep in mind that evidence preservation by the court doesn’t necessarily make its user the rightful party. Also, this writ is enforceable when it’s just about site visits, evidence observations, and making a list of them.
Based on Article 149 of CPCI The writ of “Evidence Preservation” is so vast that any reason or evidence can be protected by it, also it is applicable in both criminal and civil procedure.
Competent authority to issue Evidence Preservation writ
As Article 149 of the CPCI states “…they can ask the court to protect and preserve them…” it may be taken in a way that the competent authority to request for “Evidence Preservation” is the court, but with reference to article 9 of “Settlement of Disputes Council” code: “The councils judge with consultation with its members will consider and proceed to give a decision in the following cases…” we see that number VII is “Evidence Preservation”, so issuing an order to preserve the evidence is under the settlement of disputes council jurisdiction.
Also according to Article 19 of the same law: “Proceedings of the council is not subjected to CPCI formalities.” Article 22 continues on this matter: “Settlement of disputes council can conduct a local investigation, site examination, and evidence preservation by one of its members with council’s chairman or judge referral in addition to examining the argument of the parties.”
Deadline and Cost of Evidence Preservation in a lawsuit
According to Article 150 of the CPCI: “The request for evidence preservation can be made during the trial or before filing a lawsuit”. Note that this does not mean that this request is not possible at the time of submitting a petition.
The cost of “Evidence Preservation” at the time of filing the relevant petition is less than two million Rials. However, the expert’s fee is a variable amount according to each case, which must be paid after referral to an expert.
Evidence Preservation Issuance conditions
According to Article 151 of the CPCI: “The request for evidence preservation, whether written or oral, must contain the following details:
1- Applicants specified introduction alongside their opposed party.
2- The subject of the lawsuit for which evidence preservation is requested for.
3- The circumstances that caused the request to preserve the evidence.”
According to article 49 of CPCI: “After receiving a petition, the director of the court office must register it immediately, and give a receipt to the petitioner containing the name of the petitioner, the defendant and the date of submission (day, month, year) with the registration number and Indicate the date of submission on the petition sheet. The date of receipt of the petition at the office is considered the date of filing the lawsuit.” So the process verbal for an oral request is the court administration office duty.
Also according to Iran’s jurisprudence, it is not a violation to accept the request to hear the testimony of witnesses as evidence preservation which is interesting because even a person who is likely to be sued in the future, can make a request to the court for this writ.
Evidence Preservation issuance procedure
According to Article 15 of CPCI: “The court summons the other party to provide evidence, but their absence does not prevent the issuance of Evidence preservation writ. In matters that are urgent, the court starts the process of preservation of evidence without summoning the parties.”
Article 154 also states that: “If it is not possible for the applicant to determine the opposite party, the request to evidence preservation will be accepted and processed without specifying the party.”
Keep in mind that according to Article 155, “The purpose of evidence preservation is to safe keeping and guard it and it is up to the court to determine its value in cases of use.”
Is it possible to object to a writ of Evidence Preservation?
The legislator had not provided a solution regarding objection to an issued writ of “Evidence Preservation”. It is only possible to object against the expert’s opinion in the branch where the main lawsuit was raised and the lawsuit is evidenced by the document of the writ of Evidence preservation, in other words; one cannot object against the expert’s opinion in the judicial branch that issued the order.
Also, the decision to reject the request for an order of evidence preservation is non-appealable.
Evidence preservation for criminal cases under Iranian Law
The criminal court judge has more authority and tools for discovering the facts and collecting evidence than the civil judge due to the importance of “evidence” in criminal cases. The Criminal Procedure Code of Iran has dedicated detailed laws for crime exposure and preliminary investigations for this purpose; Articles 123-167 for crime scene and local examination, inspection, and expertise, articles 168-203 for summoning, arrest, and investigation of the accused, articles 204-216 for summoning and investigation of witnesses and informants.
However, it is still possible for a person to request for a writ of “Evidence Preservation” in criminal cases if they see the need to protect their assets despite the thorough classification and detailed provisions of the Criminal procedure law for evidence collection. But unlike civil procedure or the matters in the paragraph above, the writ of evidence preservation in criminal procedure doesn’t have a separate and special section. Instead, there’s a specific law for each case, for example;
If person A prevents person B from using their right to their own property, B can request for the writ of evidence preservation of obstruction of rights.
Or if a person is in need of the documents in possession of banks or governmental organizations, they can take action by requesting the related evidence preservation writ.
One of the most commonly specified writs of evidence preservation is for traffic accidents which the injured party can use to determine the damages they suffered.
If you need to request a writ of evidence preservation for your civil and criminal cases or are in need of an attorney to carry out your legal affairs, “Iran Best Lawyer” team offers you the best and most experienced attorneys from “Pooya Yaghoobirad Law Firm”.
