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Judicial system of Iran

A nationwide judicial system in Iran was first implemented and established by Ali Akbar Davar and some of his contemporaries such as Abdolhossein Teymourtash under Reza Shah, with further changes during the second Pahlavi era.

After the 1979 overthrow of the Pahlavi Dynasty by the Islamic Revolution, the system was changed drastically. The legal code is now based on Shi'a Islamic law or sharia. According to the constitution of the Islamic Republic, the judiciary in Iran "is an independent power." In addition to a Minister of Justice and head of the Supreme Court, there is also a separate appointed head of the judiciary. Parliamentary bills pertaining to the constitution are vetted by the Council of Guardians.

History

Islam

Since the Arab invasion of Iran in the seventh century, the Shi’ah Islamic rules and sources of judicial organisation have been the foundation of Iranian law.

The administration of justice in Islamic Iran according to one scholar, has been until recent times

a loosely sewn and frequently resewn patchwork of conflicting authority in which the different and sometimes conflicting sources for Islamic law - the jurists, the actual judges, and the non-Islamic law officials of the king - disputed with each other over the scope of their jurisdictions.... some aspects of the law always remained in the hands of the mullahs ... The village mullah was the natural arbiter in matters of marriage, divorce, and inheritance; and the exalted jurisconsult, in order to carry out the very function for which he was exalted, gave opinions on those matters of law on which he was consulted. In between the village mullah and the jurisconsult there were mullahs with courts which, while sometimes sanctioned by the royal government, depended for their power on the prestige of the presiding mullah judge as much or more than on the government's sanction

Since the sixteenth century AD Iran has been the only country in the world having Shi’ah Islam as its official religion, consequently the general principles of its legal system differed somewhat from those of other countries which followed Islamic law.

Among the ways law in Iran and the rest of the Muslim world differed from European law was in its lack of a single law code. "Thirteen centuries of Islamic - more particularly Shiah - tradition" called for jurists to based decisions on their legal training as it applied to the situation being judged. There was also no appeal in traditional Islamic law.

One jurists's `discovery` of the ruling of law for a specific case would not have been invalidated by some other jurist's discovery of a different ruling for that case; only God could choose between them, and until the Resurrection (or in the case of the Shiah, the return of the Twelfth Imam) God had left the matter to the jurists, and the first actual judgment was final, as otherwise there would have been an infinite regress of opinions without any final judgement. For the Shiah, ... resistance to a single written code was even stronger; the jurisconsult's right to describe the law in his own way was the very essence of the doctrine that had revived the jurisconsult school at the end of the 18th century.

As far as the judicial system is concerned, the changes were quite minor until the end of the nineteenth century.

20th century

Two major events marked the judicial history of Iran during the modern era: the Constitutional Revolution of 1906, which gave the country its first Constitution and Bill of Rights, and the fall of the Qajars and the rise of the Pahlavi Dynasty in the 1920’s, when accession to a modern judicial organisation became one of Iran’s greatest challenges.

Although the history of justice in Iran through the ages comprises numerous events of interest, the most significant and meaningful part of this history is that of the twentieth century, when the judicial system was modernised, a modernisation which influenced the 1979 revolution and the resulting changes.

"Regime of capitulations"

As European military and technological power began to be felt in 19th century Iran, Westerns insisted on special treatment in Iranian courts. This came in the form of treaties between most European governments and Iran requiring the presence at the trial of any European in Iran of a representative of that European's home country, who would countersign the decision of the Iranian court, and without whose countersignature the "decision of the Iranian court could have no effect." The Europeans insisted on this legal veto right - "called the regime of capitulations" - on the grounds that Iran had no written legal code so that "no one knew what laws foreigners would be judged by." Iran followed traditional Islamic practice of each judge giving his own interpretation of Islamic law for a given litigation, with no right of appeal.

Iranians in general opposed these capitulations, and secular Iranians such as Mohammed Mossadeq, wanted a establish a fixed written law they believed would not only end the capitulations but facilitate the building of a strong and unified state.

Reza Shah

Under the secularist reign of Reza Shah many changes were made in Iran's judicial system, and the establsihment of a fixed written law with appeals courts was one of them. In March 1926, Minister of Judicial Affairs Ali-Akbar Davar dissolved Iran's entire judiciary, with the approval of the parliament, and initiating a wave of fundamental restructuring and overhauling reforms with the aid of French judicial experts. By April 1927 Iran had 600 newly-appointed judges in Tehran. Davar subsequently attempted to expand the new system into other cities of Iran through a programme involving training of 250 judges.

Reza Shah represented his legal reforms as "tentative experiments" and allowed the religious judges to keep their courts for matters such as inheritance. In 1936, however, the new system was made permanent and the religious courts were abolished.

Islamic Republic

In 1979 the secular, westernizing Pahlavi Dynasty was overthrown and replaced by an Islamic Republic under the rule of Ayatollah Khomeini.

Structure of the judicial system

The 1979 Constitution of the Islamic Republic calls for the judiciary to be "an independent power," and charges it with "investigating and passing judgement on grievances; ... supervising the proper enforcement of laws; ... uncovering crimes; prosecuting, punishing, and chastising criminals;" taking "suitable measures" to prevent crime and reform criminals. The head of the judiciary is to be a "just Mujtahid" appointed by the Supreme Leader and serve for "a period of five years." He is responsible for the "establishment of the organizational structure" of the judicial system; "drafting judiciary bills" for parliament; hiring, firing promoting and assigning judges. Judges cannot be dismissed without a trial.

According to Article 160 of the constitution

The Minister of Justice owes responsibility in all matters concerning the relationship between the judiciary, on the one hand, and the executive and legislative branches, on the other hand. ... The head of the judiciary may delegate full authority to the Minister of Justice in financial and administrative areas and for employment of personnel other than judges.
The minister is to be chosen by the president from a list of candidates proposed by the head of the judiciary. The head of the supreme court and Prosecutor-General are also to be "just mujtahids" "nominated" by the head of the judiciary "in consultation with the judges of the Supreme Court" and serving for a period of five years.

Court structure

According to Luiza Maria Gontowska, the Iranian court structure includes Revolutionary Courts, Public Courts, Courts of Peace and Supreme Courts of Cassation. There are 70 branches of the Revolutionary Courts. Public courts consist of Civil (205), Special Civil (99), First class criminal (86) and Second Class Criminal (156). Courts of Peace are divided into Ordinary courts (124), and Independent Courts of Peace (125), and Supreme Courts of Cassation (22).

Operation

The courts of the Islamic Republic differ from Western courts in that the judge serves not only as judge but as prosecutor, jury, and arbiter; the system is a form of the inquisitorial system. However, according to Article 168 of Iran's constitution, in certain cases involving the media, a jury is allowed to be the arbiter. The judge holds absolute power. In practice, judges may be overwhelmed by cases, and not have the time to excogitate about each case. All judges are certified in Islamic law, and most, but not all, are members of the ruling clergy.

Criminal Law

After the election of the first Majles of the Islamic Republic, the Majles and the Guardian Council quickly codified important features of the sharia law by passing two landmark bills:

  • Qanon-e Ta'zir (Discretionary Punishment Law). Ta'zir laws dealth not only with criminal law but this law gave judges the authority to execute and imprison those found guilty of crimes such as `declaring war on God` and `plotting with foreign powers.` It also gave them the power to sentence offenders to as many as 74 lashes to those who "`insult government officials,` `convene unlawful meetings,` sell alcoholic beverages, fix prices, hoard goods, kiss illicitly, fail to wear the proper hejab, and last but not least, `lie to the authorities.`"
  • Qanon-e Qesas (Retribution Law) This law codified other aspects of the sharia. It subdivided crimes into hadd - those against God - and those against fellow beings, especially other families. Some punishments are mandatory; others, discretionary. "Based on the notion of talion, the Qesas Law calls for `an eye for an eye, a tooth for a tooth, a life for a life` - but with the understanding that a Muslim is more valuable than a non-Muslim, and a Muslim man more valuable than a Muslim woman."

Modification to sharia

According to one source, the new laws of the Islamic Republic "modify the sharia in three significant ways"

  • It gives the state the "ultimate say" over the death penalty by allowing a new High Court to review death sentences passed by lower magistrates." In its pure form the sharia had no appeals system and had given local judges final say. "The regime justifies this innovation by claiming provincial judges need yet more time to obtain proper legal training."
  • It allows circumstantial evidence to be used "under the rubric of `the judge's reasoning.`"
  • Third, it introduces long-term imprisonment - which was not used in traditional law - under `discretionary punishment.` Traditionalists, however, continue to prefer corporal punishments ..." and everybody know them.

Special courts

In addition to public courts that deal with civil and criminal cases, in the Islamic Republic there are special courts for trying clerics and for trying criminal activity deemed especially dangerous.

Clerical courts

The rulings of the Special Clerical Court, which functions independently of the regular judicial framework and is accountable only to the Supreme Leader, are also final and cannot be appealed. The Special Clerical Court handles crimes allegedly committed by clerics, although it has also taken on cases involving lay people.

Revolutionary courts

Islamic Revolutionary Courts that try certain categories of offenses, including crimes against national security, narcotics smuggling, and acts that are said to undermine the Islamic Republic.

Shortly after the overthrow of the monarchy, Revolutionary Tribunals were set up in the major towns, with two courts in the capital of Tehran - one each in the prison of Qasr and Evin, and one traveling tribunal for Hojjat al-Islam Sadegh Khalkhali, who was known for his stiff sentences. The courts presiding judges were clerics appointed by Khomeini himself. The decisions rendered by the Revolutionary courts were final and could not be appealed, and so bypassed what remained of the Justice Ministry and its appeal system.

At least at first, the revolutionary courts differ from standard Western law courts by limiting trials to a few hours, sometimes minutes. Defendants could be found guilty on the basis of `popular repute.` The concept of defense attorney was dismissed as a `Western absurdity.` A charge that was widely applied against defendants but unfamiliar to some was `sowing corruption on earth.` This covered a variety of offenses - "`insulting Islam and the clergy,` `opposing the Islamic Revolution,` `supporting the Pahlavis,` and `undermining Iran's independence` by helping the 1953 coup and giving capitulatory privileges to the imperial powers."

Prison system

Iran's prison system was "centralized and drastically expanded" by the Islamic Republic. Under the Shah prisons had been administered separately by SAVAK, the urban police, and the gendarmerie. The new regime entrusted their management "to a supervisory council of three clerics."

In Tehran, all four prisons where political dissidents were kept were expanded. Evin was enlarged "with two new blocks containing six wards and six hundred solitary cells" so it could accommodate "an additional 6000 inmates." Qezel Hesar was also expanded. Construction of the new Gohar Dasht prison had been started under the shah, it "was completed with hundreds of solitary cells and large wards housing more than 8000 inmates."

Despite all this new capacity, Iran's prisons "were seriously overcrowded by 1983". Komiteh prison, built for 500, had 1500 inmates; Evin Prison, built for 1200, had 15,000; Qezel Hesar, built for 10,000, had 15,000; and Gohar Dasht prison, built for 8000, had 16,000. Meanwhile, "Qasr, which had housed 1500, in 1978, had more than 6000."

At least for political prisoners prison life for was considerably harsher in the Islamic Republic than under the Pahlavis according to those who had tasted both. "One who survived both writes that four months under [warden] Ladjevardi took the toll of four years under SAVAK. Political prisoners were "incessantly bombarded with propaganda from all sides ... radio and closed-circuit television ... loudspeakers blaring into all cells even into solitary cells and `the coffins` [were some prisoners were kept] ... ideological sessions." Any reading material of a secular nature such as Western novelists, or even religious material that didn't agree ideologically with the Islamic Republic such as work by Ali Shariati was banned. At least in Evin prison the Persian Nowruz celebration was banned. In the prison literature of the Pahlavi era, the recurring words had been `boredom` and `monotony.` In that of the Islamic Republic, they were `fear`, `death`, `terror`, `horror,` and most frequent of all `nightmare` (kabos)."

Human rights issues

See main article: Human rights in the Islamic Republic of Iran.

Death penalty

During the early, more tumultuous years of the Islamic Republic, a great many political prisoners were executed. Between 1981 and 1985, 7,900 people were executed.

According to Amnesty International's 2004 report, at least 108 people were executed that year, most of whom having been political prisoners. Amnesty has also described cases in which adolescent children were sentenced to the death penalty. Though officially illegal, torture is often carried out in Iranian prisons, as in the widely publicized case of photojournalist Zahra Kazemi.

Like 74 other countries in the world, Iran carries out capital punishment. As a State party to the International Convention on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC), Iran has undertaken not to execute anyone for an offence committed when they were under the age of 18, but continues to carry such executions out, and is one of only six nations in the world to do so. According to Article 6 of the ICCPR, "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age.”

Homosexuality and adultery are legally criminal acts and punishable by life imprisonment or death for males, and the same sentences apply to convictions of treason and apostasy. Death sentences are always administered for those convicted of murder, rape, and child molestation. Those accused by the state of homosexual acts are routinely flogged and threatened with execution. Iran is one of seven countries in the world that carry the death penalty for homosexual acts: all of them justify this punishment with Islamic law. The Judiciary does not recognize the concept of sexual orientation, and thus from a legal standpoint there are no homosexuals or bisexuals - only heterosexuals "committing" homosexual acts.

Legal status of transgender individuals

For some years after the Revolution, transgender individuals had been classified by the Judiciary as being homosexual and were thus subject to the same laws. However, in the mid-1980s the Judiciary began changing this policy and classifying them as a distinct group separate from issues of homosexuality, and granting them legal rights. Gender identity disorder is officially recognized in Iran today, and the Judiciary permits sexual reassignment surgery for those who can afford it. In the early 1960s, Ayatollah Khomeini had issued a ruling permitting gender reassignment, which has since been reconfirmed by Ayatollah Khamenei.

Current events

In November 2002, Hashem Aghajari, a university professor and veteran of the Iran-Iraq war, was convicted of apostasy and sentenced to death. But after a storm of protests from the general populace, reformist politicians, and human rights advocates, the sentence was later commuted to three years imprisonment. Apostasy convictions are meted out not only for openly renouncing the religion of one's birth, but also for criticizing clerical rule (as in the case of Aghajari), defaming Islam, conversion from Islam, attempting to lead others away from Islam, among other reasons. As such, the legal definition of apostasy is subject to the individual interpretation of the judge. The traditional definition of apostasy only applies to those who are born into one of the legally recognized religions - Islam, Judaism, Christianity, and Zoroastrianism. The Bahá'í Faith, for example, is not legally recognized, and the adherents of that religion are considered apostate by virtue. Also see religious minorities in Iran.

On 19 July 2005 two teenagers, Mahmoud Asgari and Ayaz Marhoni, aged 16 and 18, were executed by hanging in Edalat (Justice) Square in the city of Mashhad. They had been convicted of raping a 13-year-old boy in 2004, and other charges included alcohol consumption, theft, and disturbing the peace. They were detained for 14 months in prison awaiting execution and sentenced to 228 lashes. Iranian officials complained that foreign and domestic media emphasized that the two were mere boys. “Instead of paying tribute to the action of the judiciary, the media are mentioning the age of the hanged criminals and creating a commotion that harms the interests of the state”. Nobel Peace laureate Shirin Ebadi condemned the hanging of Asgari and Marhoni as a violation of Iran's obligations under the International Convention on the Rights of the Child, which bans such executions. .

Reformist politicians have made attempts in the past to challenge the death penalty, as well as to enforce the rule of law concerning the illegal use of torture in prisons. Journalists and human rights advocates in Iran who attempt to raise awareness of these issues often risk imprisonment and the death sentence themselves, such as in the case of Akbar Ganji. On 18 December 2003, President Mohammad Khatami stated, "I don't like the death penalty, although if there is one case where there should be an execution, the fairest case would be for Saddam. But I would never wish for that."

Due to the power and scope of the institutions of velayat-e-faqih (Guardianship of the Clergy), which includes the Council of Guardians and the Office of the Supreme Leader, as well as the Judiciary, elected institutions such as the Majlis and the Office of the President are often unable to challenge laws because they are constitutional.

Criticism

One secular critic has described the Qesas Law of the Islamic Republic as discriminating against women, against non-Muslims, and against the poor. As reviving horrific corporal punishments, assuming parts of the human body can be converted into money. It "threatens to create an army of handicapped victims. And it `paves the way for judicial torture` by permitting the use of confessions.

Gender inequality

Human rights activist and Nobel Prize winner Shirin Ebadi complains that the section of the penal code "devoted to blood money, diyeh, holds that if a man suffers an injury that damages his testicles, he is entitled to compensation equal to a women's life," and this failure to make account for individual differences or cases is unfair. It means, according to Ebadi, that "if a professional woman with a PhD is run over in the street and killed, and an illiterate thug gets one of the testicles injured in a fight, the value of her life and his damaged testicle are equal."

Ebadi has also protested that while the "the Islamic Revolution had anointed the Muslim family the centerpiece of its ideology of nation" and envisions a "restoration of traditional and authentic values" through women playing the role of "Muslim mother" staying home to care for "her mulitplying brood," at the same time its family law automatically grants fathers custody "in the event of divorce," and makes "polygamy as convenient as a second mortgage."

See also

References

External links

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