Document Type : Original Article
Authors
1 PhD Student in Private Law, Isfahan Branch (Khorasgan), Islamic Azad University, Isfahan (Khorasgan), Iran
2 Assistant Professor, Department of Private Law, Isfahan Branch (Khorasgan), Islamic Azad University, Isfahan (Khorasgan), Iran
Abstract
Highlights
The administration of justice is the ultimate goal of any trial, and a fair trial is one of the most important indicators of measuring the social and judicial development of any society. Judicial assessments were fair only by defining standards as the minimum necessary for the fair trial to be considered fair.
In the Iranian legal system, according to Article 159 of the Constitution, the courts of justice are recognized as the general authority for dealing with complaints and grievances, and in addition, Article 173 of the Constitution, the Court of Administrative Justice to hear complaints and grievances. And anticipates public protests against government units, agents, or bylaws and for judicial oversight of administrative actions.
Usually, part of the administrative proceedings is conducted by the executive branch in the form of quasi-judicial acts, which is a sign of cooperation and separation of the three branches. A number of specialized administrative authorities, such as the criminal court, investigate administrative, disciplinary, and other disciplinary violations, and in the event of a violation, issue a verdict of punishment or punishment for the offender in various ways. To. Some of these authorities refer to disciplinary, disciplinary and administrative violations of employees and union members in violation of the internal regulations of executive bodies and union assemblies and non-observance of their internal order, as well as violations of members of society who are not criminals but violate the law. They disrupt the internal order of the organization. Among these authorities are the Armed Forces Staff Violations Boards.
The investigation of violations of the Armed Forces personnel is different from other government employees and is subject to the special provisions of the Law on the Establishment of Disciplinary Boards to investigate the complaints and violations of the Armed Forces personnel approved in 2016 and its executive instructions. Prior to the enactment of the said regulations, the disciplinary boards of each organization of the armed forces dealt with the disciplinary violations of the employees in accordance with the special provisions mentioned in their employment laws. Adoption of different procedures at the level of the armed forces affected the realization of justice, the defense rights of the accused and a fair trial.
The research method is descriptive-analytical. In order to conduct research, first reference is made to library resources and materials related to the research topic are collected, and in the next stage, the materials are analyzed.
The principles of a fair trial include such things as: openness of the trial, the principle of impartiality and independence, the right to a trial within a reasonable time, and to be prepared to defend oneself and to have the right to a lawyer.
In the field of openness of the trial, in the trial of violations of the armed forces and in the case of investigation of violations of employees, Articles 6 and 7 of the Law on the Establishment of Disciplinary Boards and Articles 16 and 25 of its executive instructions indicate in-person investigation. If the trial in absentia is at the request of the accused and is due to his absence from the criminal proceedings despite the possibility of a trial, provided that the rights of the accused and the necessary guarantees are respected, it is not contrary to the principles of fair trial; However, if the laws of "principle of presence or proportionality of the trial" are violated, the trial will be unfair and the mentioned principles as well as the principle of equality of arms and the right to opportunity and defense facilities of the accused will be violated.
Also, in the trial of violations of the armed forces, the principle of neutrality has not been observed, so that in the structure and composition of disciplinary boards, the official proposing punishment is also present as a member of the judiciary. In the police force, most of the officials proposing punishment based on paragraphs "e" of Articles 4 and 15 of the Law on the Establishment of Disciplinary Boards and Article 6 of its executive instructions are members of the primary or appellate boards, as the case may be. Pursuant to Article 121 of the NAJA Employment Law, Composed of the following members:
- Deputy Chief of Staff of the police force with his deputy
- Chief of Inspection of the entire police force with his deputy
- Relevant deputy of the ideological political organization of the police force or his deputy
- Relevant deputy of the information protection organization of the police force with his deputy
-Representative of the Judicial Organization of the Armed Forces.
Regarding the right to have a lawyer, in accordance with the provisions of Article 24 of the Law on the Establishment of Disciplinary Boards, a defendant accused of a violation and plaintiff subject to this law may Introduce disciplinary violations of the Armed Forces, which in a way has limited the principle of access to a lawyer and the selection of defendants in the disciplinary authorities of the Armed Forces.
The need for reasoned and documented opinions issued by the disciplinary authorities of the Armed Forces can also be stated:
Today, the principle of obligation to provide evidence by administrative officials is one of the important principles of good governance. One of the foundations of this principle is the right to defense. Accordingly, before the administrative decision is final, the views of the beneficiary or the addressee of the decision must be heard so that he can defend his rights and interests. In this context, the right of defense is to state the reasons for the decision.
Accordingly, at the stage of administrative proceedings, the opinions issued by these authorities must be reasoned and documented. The issuance of reasoned and documented opinions requires the presence of a member of the judiciary in the composition of the initial and review boards. Although Articles 4 and 15 of the Law on the Establishment of Disciplinary Boards sometimes use a legal director or a legal assistant in the composition of the boards, but the effect of the member of the lawyer in the composition of the boards is small and in the composition of the boards there are members such as "Chairman "Information protection", "Head of Political Ideology" and "Judicial and Disciplinary Director" are structurally the combination that is most to the detriment of the accused. Also, in the text of the law, there is no mention of the necessity of the principle of reasoning and documenting the decisions issued by the panels, which in terms of fair trial, the absence of such a principle, can be criticized and is contrary to the rights of the accused.
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