Judicial System Of The Islamic Republic Of Iran

The Islamic Republic Iran was founded after the 1979 overthrow of the Pahlavi dynasty by the Islamic Revolution, and its legal code is based on Islamic law or sharia, although many aspects of civil law have been retained, and it is integrated into a civil law legal system. According to the constitution of the Islamic Republic, the judiciary in Iran "is an independent power". The entire legal system—"from the Supreme Court to regional courts, all the way down to local and revolutionary courts"—is under the purview of the Ministry of Justice, but in addition to a Minister of Justice and head of the Supreme Court, there is also a separate appointed Head of the Judiciary.Abrahamian, Ervand, ''History of Modern Iran'', Cambridge U.P., 2008, p.177 Parliamentary bills pertaining to the constitution are vetted by the Council of Guardians.

The original nationwide judicial system in Iran was implemented and established by Abdolhossein Teymourtash under Reza Shah, with further changes during the second Pahlavi era.

History

Structure of the judicial system

The 1979 Constitution of the Islamic Republic called 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, also known in English as 'Chief Justice of Iran', 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.

Judicial authority is constitutionally vested in the Supreme Court and the four-member High Council of the Judiciary, according to Hunt Janin and Andre Kahlmeyer.

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 Judicial Council of Iran(22).

Operation

The courts of the Islamic Republic are based on an inquisitorial system, such as exists in France, rather than an adversarial system as in the United Kingdom and the United States. The judge is the arbiter and decides on the verdict. In serious cases, he is assisted by two other secondary judges, and in cases involving the death penalty, four other secondary judges. There is also a public prosecutor. 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 consider each case carefully. All judges are certified in Islamic and Iranian law.

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 through the normal appeals court system, but only through an internal appeals mechanism to which the ruling judge must agree. Princeton Professor Mirjam Künkler writes "It is not difficult to see how the SCC, given its legal status outside any accountable, transparent check by a governmental office other than the Office of the Supreme Leader, could transform into the Supreme Leaders’ primary instrument to discipline and prosecute dissident clerics." 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 (often execution). The courts presiding judges were clerics appointed by Khomeini himself. The decisions rendered by the Revolutionary courts initially were final and could not be appealed, and so bypassed what remained of the Justice Ministry and its appeal system. In 1989, a law was passed allowing an appeal to be made to the Supreme Court of Cassation. If the appeal was recognized, then the case would be given a retrial. Many Revolutionary Court judges today are not clerics however.

At least at first, the revolutionary courts differed 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' ( mofsed-e-filarz). 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". Between 1979-1989, the Revolutionary Courts ordered the execution of at least 10,000 political prisoners, belonging to anti-revolutionary opposition groups, and sentenced others to death for crimes such as drug trafficking, adultery, sodomy, kidnapping, "disruption of the public order", and "terrorism". It is hard to know how many actual political prisoners were executed, because often of those executed for political crimes were also accused of "drug trafficking" or "sodomy".

In 1982, with continuous military coup threats, the Military Revolutionary Court was created.

By the 1990s, political executions became less common, but not unheard of, and by the 21st century are rare, carried out mainly in cases of "armed" or "riot-related" regime opposition. Belonging to an anti-regime "armed" opposition group is could also result in a death sentence. In recent years, the Revolutionary Courts operate more like normal courts, although they are still considered politically allied with the Supreme Leader rather than the regular, public courts which are neutral. Oftentimes, Revolutionary courts exist side by side with public courts. They also still try political and national security cases, as well as drug trafficking, smuggling, and "disturbance of the public order".

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 6,000 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 8,000 inmates".

Despite all this new capacity, Iran's prisons "were seriously overcrowded by 1983". Komiteh prison, built for 500, had 1,500 inmates; Evin Prison, built for 1,200, had 15,000; Qezel Hesar, built for 10,000, had 15,000; and Gohar Dasht prison, built for 8,000, had 16,000. Meanwhile, " Qasr, which had housed 1,500, in 1978, had more than 6,000".

At least for political prisoners prison life 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 arden Asadollah 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' here 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'')". By the 2000s prison life was considerably better, although torture was still carried out on political inmates (even allegedly criminals). But after the controversial 2009 elections, the situation for political prisoners has reportedly deteriorated.

Although classical Sharia law does not mention imprisonment, prisons are widely used in Iran. Typically, it would be given as a discretionary punishment from the civil code. In other cases, the defendant receives a sentence of exile, which would be carried out in a prison.

In 2005, with the prison capacity of 80,000, the actual number of prisoners was close to 160,000 people.

Statistics released in 2014 indicated that Iran then had 210,000 prisoners.

In June 2016, Iran has 228,000 prisoners, according to Iran's Minister of Justice Mostafa Pourmohammadi.

World Prison Brief provides statistics from 2018 that help size up the prisons in Iran. As of 2014, Iran had 253 prisons. As of 2018, 240,000 prisoners occupied those 253 prisons. The official occupancy level of the prisons in Iran is 150,000. Iran is currently 153% overcrowded. Out of every 100,000 people in Iran, 294 of them are incarcerated.

On 27 March 2020, Asghar Jahangir, head of Iran’s Prisons Organization, said that, because of the COVID-19 pandemic, more than 100,000 prisoners had been granted furloughs, around 40% of Iran’s estimated 240,000 prisoners.

The legal profession

According to Banakar and Ziaee, the history of the Iranian Bar Association (Kānūn-e Vūkalā-yeh Dādgūstarī) “can be traced back to the period after the 1906 Constitutional Revolution, when a modern legal system was established in Iran. The IBA was founded in 1915 and organised under the supervision of the judicial system until 1953, when it was granted legal personality. It operated as an independent civil society organisation for the next twenty-seven years, until it was closed in 1980 by the revolutionary government and its ranks and files were purged. It was reopened in 1991 under the control of the Head of the Judiciary and regained some of its independence in 1997 when President Khatami ��won the general election. Since then, the numbers of lawyers have grown steadily to an estimated 60,000, and perhaps most significantly a large number of women have passed the Bar and joined the legal profession”. A new body of lawyers was created by the judiciary in 2001 and authorized to present cases in court under Article 187 of the Law of Third Economic, Social and Cultural Development Plan (adopted in May 2000). This group, whose membership in 2014 was estimated to exceed 20,000, is officially known as the Legal Advisors of the Judiciary. The Legal Advisors do not take the bar exam and are not organised by the bar. They need to seek re-accreditation by the judiciary every year, which, as Künkler has shown, undermines their political independence.

Law

Modification to sharia

Although Article 2 of the constitution the Islamic Republic states that the Republic "is a system based on belief in ... the One God ... His exclusive sovereignty and the right to legislate", according to one source, the new laws of the Islamic Republic "modify the sharia" (i.e. what Muslims believe is God's legislation) "in three significant ways."
#They give the state the "ultimate say" over the death penalty by allowing a new High Court to review death sentences passed by lower magistrates." In contrast, sharia in its traditional form, had no appeals system and gave local judges final say. While in lesser sentences, the judges verdict would be final, in more serious crimes, the sentence could be appealed to the Provincial Appeals Court. In a capital crime, it would be appealed to the Supreme Court of Cassation. Sometimes criminals get multiple appeals that last for years, depending upon the evidence against them along with "reasonable doubt". Retrials can be ordered, typically in the same court that convicted the prisoner.
#Laws allow circumstantial evidence to be used in deciding a case "under the rubric of 'the judge's reasoning.'"
#The legal system has introduced long-term imprisonment – which was also traditionally not used in sharia law – under 'discretionary punishment' (Tazirs ..." in sentencing. In 2008, the then Head of Judiciary Ayatollah Hashemi Shahroudi (considered a moderate) asked judges to carry out more corporal punishment and less imprisonment, because "long term imprisonment is expensive, is not effective, and prevents criminals from reintegrating into society".

Civil law

Banking

After the 1979 Islamic Revolution, all banks had to follow Sharia banking procedures, including the forbidding of interest (riba) and the forbidding of usury. The Supreme Audit Court of Iran regulates banking and financial operations. In recent years, Iran has created free trade zones, such as on Kish Island and the port of Chabahar where such rules are not applied in order to stimulate investment, similar to other Muslim countries. While the Islamic Republic has publicly and officially committed itself to interest-free economy and
banking, "has decreed that government borrowing on the basis of a fixed rate of return from the nationalized banking system would not amount to interest and would hence be permissible."

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 in July 1982:
*''Qanon-e Ta'zir'' (Discretionary Punishment Law). Ta'zir laws dealt 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' (equivalent to treason/terrorism) 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 hijab, and 'lie to the authorities.'"'The Complete Text of the Retribution Law' ''Iran Times'', 6 March 1981. see also: 22 May 1981, 15 October 1982. quoted in ''Tortured Confessions'' by Ervand Abrahamian, University of California Press, 1999, p.133
*''Qanon-e Qisas'' (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 lex talionis, the Qisas Law calls for 'an eye for an eye, a tooth for a tooth, a life for a life', unless the victim or his/her family forgive the perpetrator, and/or accept compensation for the death/injury (blood money).

In 1991–1994, Iran combined all of these laws into the unified "Islamic Penal Code" which consisted of five "Books". The new Islamic Penal Code was adopted in January 2012 and incorporates the bulk of penal laws in the IRI, replacing Books One through Four of the old code. Book Five of the Islamic Penal Code ("the only part of the Penal Code that has been adopted permanently and is not subject to experimental periods") passed on May 22, 1996. Book Five deals with ta'zir crimes and deterrent punishments, crimes against national security, crimes against property, against people, theft, fraud, forgery, insult and many other offenses.

''Qisas''

Qisas (the law of retaliation/retribution) is a sharia class of crime involving personal injury. It is similar to a civil law tort. If a person has intentionally murdered or maimed another person, the victim (or victim's family) is entitled to retribution (an "eye for an eye" in the case of personal injury or a life for a life in the case of murder). However, the victim (victim's family) can forgive the perpetrator and have the punishment not carried out. If so, the perpetrator must pay blood money (diyya) to compensate for the injury/death.

If the death was intentional murder (qatl-e-amd) or intentional injury (zarb-jahr amd), qisas can be applied. If the death was unintentional (manslaughter; qatl-e-na-amd) or unintentional injury (zarb-jahr na-amd), qisas cannot apply, but the person can receive up to three years in prison in order to pay the money. If an unborn child was killed, while considered intentional murder, the maximum punishment is one to three years in prison.

If the death/injury was unintentional, the perpetrator must pay diyya, he/she cannot receive qisas. The judge only convicts the perpetrator, he has no say in whether qisas will be applied or not (although he can try to influence the decision). It cannot be overturned upon appeal either unless the person is found not guilty on appeal. The age qisas is applied is 15 years of age, which has resulted in some controversy due to juvenile executions (that the authorities are powerless to stop). In 2012, the authorities said that qisas would not be applied anymore for youths under 18 years of age, except in rare cases. However, Iran uses the lunar Islamic calendar to determine criminal age, meaning some "eighteen-year olds" would actually still be seventeen years old.

If forgiven, the intentional murderer/injurer can also get a discretionary civil law sentences as well (such as 10 years imprisonment on a murder charge), if there were aggravating circumstances. All murderers must serve a minimum of 2–3 years in prison. Unintentional murderers cannot receive any additional punishment unless they also committed another crime, such as drinking. However, as a general rule, murder is considered to be more of a tort rather than an offense against the state.

Qisas is considered by Islamic scholars to be extremely fair and just. For example, in Western countries, the family of the victim has no say in the punishment that the perpetrator receives, yet in Islamic law, a murderer could be executed or forgiven depending upon the wishes of the family. In intentional qisas cases, the sentence would sometimes be delayed for five years in order to increase the chances of a settlement, and allow the criminal to amass the blood money.

Qisas cannot be applied in cases of self-defense, manslaughter, where the case lacks the proof requirements, on minors (age 15 for boys, 9 for girls prior to 2012, after 2012 aged 18 in most cases), on insane people, a person who murdered a spouse and/or their lover caught in the act of adultery, a father who murders his children, etc. Depending on the crime, they would be punished through a ''tazir'' discretionary sentence, ranging from no prison to 2 years in prison to life imprisonment. Sometimes the death penalty can be used if the person has been found guilty of "spreading corruption on the earth" or "''moharebeh''". Crimes of passion are not recognized as a legitimate defense, with the exception of the spouse caught in adultery. Self-defense and insanity is also narrowly defined. With the exception of manslaughter, and where proof requirements are lacking, none need to pay diyyeh either. If a murderer was working on the orders of another and he/she can prove it, they will receive a tazir punishment (imprisonment, fines and/or whipping, sometimes even death), while the person(s) who ordered the killing will suffer qisas/diyyeh.

One secular critic claimed the Qisas Law of Iran as discriminating against women, non-Muslims, and the poor; as reviving horrific physical punishments; and assuming parts of the human body can be converted into money. Qisas punishments "threatens to create an army of handicapped victims. And it 'paves the way for judicial torture' by permitting the use of confessions".

A qisas case that was said to have brought attention following publicity by Amnesty International, was a 2011 sentence of blinding by an Iranian court against a man who had blinded a woman in Tehran. In 2004, Majid Movahedi poured several liters of sulphric acid on the face of Ameneh Bahrami, blinding and severely disfiguring her, after she had spurned his proposals of marriage. Movahedi was tried in 2008 and found guilty, and for his sentence arrangements were made for Bahrami to inject "twenty drops of acid" into each of Movahedi's eyes while Movahedi was under anesthesia in a Tehran hospital. After appeals the punishment was set to be carried out on 14 May 2011, but has been postponed, and later Bahrami forgave Movahedi, thus sparing him the punishment.

''Diyyeh'' (blood money)

In any case of personal injury, the victim's family may accept ''diyyeh'', or blood money to compensate for the death/injury. The official rate that diyyeh is a price equal to 100 camels (this precedent was set by Muhammad). However, the blood money must be paid in cash only, not by bartering or any other means. While the victim's/victim's families have a right to retribution (qesas) when the crime is committed intentionally, they are recommended by the Qur'an and judges to forgive the defendant.

In practice, blood money is settled through negotiation between the two parties, and the final sum is usually more or less than the official "100 camels" amounts, unless both sides could not reach a settlement.

A woman receives 1/2 of the blood money a man does. However, in practice, since the blood money is settled through negotiation between the parties, normally women receive equal amounts as men, and in 2008, the law was changed allowing women equal amounts of diyyeh in cases involving insurance and life-insurance.

An unborn child in the first period of pregnancy will receive 1/20 of regular diyyeh, and in the second period, 1/10 of regular diyyeh.

In an intentional case, the money must be paid at once, and the person must remain in prison until the money is paid. In unintentional cases, the blood money can be paid over a period of 1–3 years, it the person fails to generate the money, they will go to debtor's prison until it is paid. The family of the murderer/injurerer is expected to help pay the blood money. In other cases, the government will subsidize it, or private charities/citizens will help pay.

In rape/sodomy rape cases, the rapist must pay "''jirah''", which is similar to blood money, but equivalent to a woman's dowry (''mahr''), usually in exchange for forgiveness. In addition, they may be forced to also pay diyyeh as well, for injuries inflicted during the rape.

''Hadd'' crimes

Iran uses the Shia based Jaafari school of Islamic jurisprudence. Some of the ''Hudud'' (''Hadd'' is the singular) punishments differ from other countries, such as Saudi Arabia. Some of these laws are part of Iran's penal code, while others are uncodified. These laws are more the maximum limits for sentencing and are rarely applied, but in serious cases they can be applied. All of these crimes have civil/tazir code punishments, but in serious cases, hadd punishments would be carried out.

Hadd crimes are considered to be "claims against God", and they are punishable by a mandatory, fixed sentence that was laid down in the Koran and Hadith. They are very rarely applied in practice, because they require a high standard of proof and if the person is repentant or if there is any reasonable doubt, it may not be carried out. Two witnesses or a confession are required for a conviction. For sexual crimes, 4 witnesses are required.. Others forms of evidence (such as video evidence) are admitted for hadd punishment, except in cases of consensual sexual crimes. They are:

*Waging war against God ('' moharebeh'') and spreading corruption in Earth ( mofsede-fel-arz): judge has option of 1) death penalty; 2) crucifixion for three days; 3) amputation of right hand and left foot; 4) exile/imprisonment
This crime is for somebody who used a weapon to strike fear and spread disorder, for example through armed robbery, kidnapping, terrorism/violent armed crimes, rape, and gang violence. This charge has been used in Iran as a political charge/treason/disrupting stability of Islamic Republic, and belonging to anti-regime opposition groups. Mitigating factors are repentance and lack of success of the crime. People are generally only convicted of moharebeh and executed if they had murdered somebody (at any point in their lives), or they committed serious acts against the state and society (such as repeatedly attempting the murder of police). It can also be applied for treason, espionage, "terrorism", and "acts against the state".

*Theft (''sirqhat-e-haddi''): 1st offense, amputation of the 4 right fingers; 2nd offense, amputation of the 5 left toes; 3rd offense, life imprisonment; 4th offense, death penalty. There are numerous mitigating factors, such as poverty, repentance, failure, if it was public property, if it was not in a secure place inside of a house/store, and such. As a general rule, Iranian judicial authorities do not carry out amputation. In Iran, amputation as punishment was described as "uncommon" in 2010, but in 2014 there were three sentences of hand amputation, and one of eye gouging in 2015. Fingers, but not the complete hand, were amputated as punishment four times in 2012-13.
*Apostasy (''irtaad''): officially not a crime in Iran, but still punished because it is inspired by religious texts in serious cases. Death penalty for men, life imprisonment for women. (If person had converted and then became apostate, three days are given to repent, otherwise execution carried out).
*Blasphemy (''sabb-al-nabi''): death penalty or imprisonment
*Adultery (''zina''): Unmarried (fornication), 100 lashes, death penalty by stoning for married couples. Mitigating Factor: repentance, lack of evidence, marrying partner, temporary marriage in some cases.
*Married: death penalty by stoning. Mitigating factor: repentance, lack of evidence, forgiveness by spouse, (in practice if partner did not die, no death penalty given) It would normally would be reduced to 99 lashes discretionary punishment
*Rape: death penalty for rapist (4 witnesses not needed in most cases). Mitigating factor: repentance, forgiveness of victim, paying compensation "jirah" to victim, lack of evidence
*Sodomy (''lavat''): Rape, death penalty for rapist; Consensual; 100 lashes for active partner, death penalty for passive partner unless repentant (prior to 2012, it was death penalty for both). Mitigating factor: repentance, lack of evidence, (see adultery's mitigating factors)
*Takhfiz (non-penetrative homosexuality): 100 lashes; 4th offense, death penalty. Mitigating Factor: repentance, lack of evidence
*Lesbianism (''mosahegheh''): 100 lashes; death on 4th offense Mitigating factors: repentance, lack of evidence
*Procuring of prostitute ('): 100 lashes; 4th offense, death penalty. If widespread prostitution rings were run, person could be sentenced to death as a "corrupter of the earth". Mitigating factor: repentance, lack of evidence
*False accusation of sexual crimes ('): 80 lashes; 4th offense, death penalty. Mitigating factors: forgiveness of the falsely accused person.
* Consumption of alcohol ('): 80 lashes; 4th offense death penalty (prior to 2008, 3rd offense) This also applies to drug users. Mitigating factors: repentance, lack of evidence, promising to receive treatment for addiction

These sentences are not commonly implemented (at least in full) due to the high burden of proof and the emphasis on repentance and forgiveness required. Most criminals thus receive a lesser conviction, through the tazir code.

''Tazir'' (deterrent crimes)

A tazir

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