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An Elaboration on the Judicial System of the Islamic Republic of Iran and Its Challenges with Regard to Criminal Courts

Nafiseh Eivazi

Abstract


The 1979 revolution erased six decades of modernization of Iran’s judicial system. The theocrats moved swiftly to overhaul the legal system to incorporate Islamic Sharia law. Criminal and civil codes were modified; family laws that cover marriage, divorce, child custody and many women’s rights faced the biggest changes. The new Islamic penal code included controversial articles, such as the Qisas law of retribution for murder, stoning for adultery, amputations of body parts for theft and certain national security offenses, and flogging for a wide range of offenses .Many of the new laws were legislated in vague terms, allowing for subjective interpretations as well as diverse and even contradictory rulings by judges. As a result, the judiciary is widely considered one of the Islamic Republic’s most dysfunctional institutions. Even judges are critical. The judiciary plays the paramount role in suppressing dissent and prosecuting dissidents, often on charges of “acting against national security.” Working closely with intelligence services, the judiciary has for decades tried a wide range of opponents and critics, from students and street protestors to civil society activists and political reformers. Trials are often criticized for lack of evidence and not conforming to fundamental standards of due process. Detainees can be held for long periods in solitary confinement. Many are denied access to their lawyers. Verdicts are often based on “confessions” extracted during interrogations. And many are sentenced to lengthy prison terms.


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References


. Article 4 of Iran’s Constitution (1979): [Islamic Principle] All civil, penal financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the Constitution, as well to all other laws and regulations, and the learned persons of the Guardian Council are judges in such matters.

. For further details refer to Marefat quarterly journal, No. 49; “Round Table Discussions on Public Enforcement of Hudud and Consequences Thereof.”

. Re. Islamic Hudud and provisions concerning Qisas [retribution] involving body organs (subject of Books II and III of the Islamic Penal Code.)

. Also see sections of memoirs of Iraj Mesdaghi—one of the political prisoners of the 1980s.

. Nulla poena sine lege [Latin]

. According to the German Nazi penal laws, any act contrary to “healthy consciousness and spirit of German people.” could be considered a crime. Morteza Mohseni, Public Penalization Laws )Tehran, Ganje Danesh Publication, 1996) Vol. I, P.335.

. Articles 32, 36, 166, and 169 of Iran’s Constitution, and Article 2 of the Islamic Penal Code.

. According to Article 2 of the General Criminal Code (1973): “Crime is any act or omission that is punishable by codified law or that which would necessitate disciplinary and/or correctional measures. An act cannot be considered a crime if there is no punishment, disciplinary and/or correctional measures determined for it in law.”

. Quran: Surah Al-Isra (17:15) And never would We punish until We sent a messenger.

. Ruhollah Khomeini, Tahrir-al Wasilah (Qom, Islamic Publication Inc.) Vol. II, P. 329.

. In 2001, Ameneh Bahraminava initially opted for Qisas and requested blinding of convicted Majid Movahedi, but ultimately pardoned him; and Alireza Mulla Soltani, a 17 year old killer of Ruhollah Dadashi (a.k.a. the strongest man in Iran), was publicly hanged in Karaj before thousand onlookers causing serious concerns for human rights and social activists in Iran.

. It appears that the effects of an eight-year war, the oppression and repression of political forces, gaps in social classes, a widespread socio-economic crisis, exile and migration of thinkers and intellectuals, lack of proper educational programs, coupled with a religious-based government have managed to support, and entrench [into Iran’s judicial system], some of the harshest Islamic Sharia precepts, such as Qisas and capital punishment—to the extent that the concept of ‘criminal justice,’ has been diminished considerably to that of Qisas and/or a sense of personal vengeance.

. According to ‘family support’ laws (1974), Iranian women were able to gain some of their rights as human beings within the framework of marriage and divorce. Providing access to these rights was not possible without elimination of some religious provisions instilled in the law in 1967.




DOI: http://dx.doi.org/10.1000/ijsmr.v1i1.105

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