judicial independence in Iran's legal system; A reflection on the historical developments from the constitutional period to the constitution (with emphasis on the recruitment and selection stage)

Document Type : Original Article

Authors

• Meysam GholiZadeh ¹
• Abbas Ali Soltani ²
• Mohammad Hadi Ghabooli DarAfshan ³

¹ PhD student of Fiqh and Fundamentals of Islamic Law, Ferdowsi University, Mashhad, Iran

² Associate Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Ferdowsi University, Mashhad, Iran

³ Assistant Professor, Fiqh and Fundamentals of Islamic Law Department, Ferdowsi University, Mashhad, Iran

Abstract

Highlights

The principle of judicial independence, which is defined by the independence of judges in the judicial system, is considered one of the most fundamental principles of fair proceedings in the judicial justice system. An issue that not only in the domestic laws and norms of the countries have tried to guarantee it in different ways, but also emphasized in international documents. Judicial independence is an integral part of the concept of rule of law. In general, the meaning of independence is that the members of the court are far from taking sides of one of the two sides of the case, the prosecutor, the accused or intending to harm the accused person. Judicial independence also means the separation of the administrative authorities of detention and interrogation from the court.

Regarding the provision of special employment regulations for judges, it has also been stated: Judges of the judiciary are not subject to the country's employment law due to the principle of independence of judges. The main question that this research seeks to answer is the investigation of the position of the Iranian legal system regarding the independence of judges in the selection stage, according to the normal laws, the constitution and the laws approved during the constitutional era. The ways of guaranteeing judicial independence can be examined in two dimensions of institutional and individual independence. In terms of guaranteeing individual independence, there are things to be considered, such as: occupational immunity, the method of selection and employment, the method of promotion and transfer, etc., can be examined in the provisions related to the constitution, as well as ordinary laws and laws before the Islamic revolution. The research method in this study is descriptive-analytical, and the library method was used to collect the sources.

In most of today's laws, judicial independence is emphasized, for example, Article 14, paragraph 1 of the International Convention on Civil and Political Rights stipulates that everyone has the right to have their lawsuit heard fairly and publicly in a competent, independent and impartial court. Independence in decision-making and issuance of any kind of verdict or order is necessary for judges. The independence of the judge guarantees judicial security and as a result, it is an important shelter to protect the rights and freedoms of people caught in the clutches of justice. Gives.

In this way, judicial independence must be complete and comprehensive against the executive branch, against the officials of the judicial branch and even against the public opinion. This type of independence, which is called institutional independence, includes rights for the judicial system, which leads to lack of orientation and pressure from other powers and institutions. The goal in this category is to create an independent and separate set of other state and government forces that has the ability to deal with offenders regardless of political votes and decisions and interests that are not desired by the general public. Here, the discussion is not only about maintaining independence from the executive and legislative branches, but any interference that takes place either by the officials of the executive branch or by influential people who do not hold government positions in the decisions of the judicial branch is reprehensible and disrupts the institutional independence of the branch. Judiciary is considered.

. This is the same situation that is referred to as the principle of the immutability of judges, so that even those who oppose the separation of the judiciary from the other two branches and even those who consider judgment to be an executive act believe that according to the aforementioned principle, changing the place of service and changing It is impossible for judges to work without their consent and to dismiss them from the job of judge, except in cases where the judge has committed a violation, the punishment for which is permanent or temporary dismissal from the judicial job, that is after trial and proof of the crime. Compliance with the principle of immutability of judges is a condition for the independence of the judiciary.

Some authors are of the opinion that the concept of independence contained in Article 156 of the Constitution is different from the independence used in Article 57. According to this opinion, independence in principle 156 is used in the sense of impartiality and independence in recognizing the right and justice, and it clearly means the functional independence of the judge in the proceedings. In this opinion, the administrative and organizational independence of the judiciary is considered a way to ensure the personal independence of judges, and for this reason, it has no intrinsic relevance.

The General Directorate of Selection of Judges is obliged to evaluate candidates for the post of judge through psychological examination, mental health, suitability of intelligence and personality. Qualification of candidates is the responsibility of three-member commissions, whose members are judges or officials of the judicial branch, who are appointed by the head of the judiciary for a period of 3 years, the general manager of the selection of judges as the secretary of executive affairs of the commissions. is in charge of things such as determining the place and time of holding meetings and inviting members. The members of the board, after considering the candidate's selection file and according to the result of the candidate's scientific interview and the theory of the General Directorate of Judge Selection, express their opinion regarding the general qualification of the named candidates. The decisions of the board are made by majority vote.

Since in the process of recruiting and selecting judges, the selection boards of the judiciary act as a special administrative court, therefore, complaints about the decisions and votes issued by them based on paragraph 2 of article 10 of the Law on Organizations and Procedures of the Court of Justice administrative can be sued in the court branches. The 26th branch of the appeal in the position of handling the complaint of the plaintiff against the central selection board, with the argument that the proceedings in the board were without regard to the value and validity of the reasons and the plaintiff's earned rights and job security were not taken into account, based on articles 2 and 15 of the selection law. The country, while violating the court order of the first branch, has issued a ruling to enter the complaint and re-hear it in the relevant board.

The judicial independence of judges, which is a subset of the judicial independence of the judiciary, has indicators and mechanisms that will guarantee the principle of judicial independence. These indicators include: the index of non-influence and effectiveness, the index of the prohibition of dismissal of judges, the index of non-violation of judicial decisions and other indicators. have confirmed judicial independence in their texts, but the judge does not observe its principles, then judicial independence will not have a true meaning.

Keywords

• individual independence
• institutional independence
• neutrality
• constitution
• separation of powers

Main Subjects

• Other topics