Structure of the judicial system
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.
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).
The courts of the Islamic Republic are based on an inquisitorial system, such as exists in France, rather than an adversarial system of the United Kingdom. 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 excogitate about each case. All judges are certified in Islamic and Iranian law.
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.
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, 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”.
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.'”
- 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.