The Journal of Modern Research on Administrative Law

The Journal of Modern Research on Administrative Law

The application of the principle of legitimacy of the acquisition of criminal evidence in Iran's administrative proceedings with an emphasis on the decisions of the Court of Administrative Justice

Document Type : Original Article

Authors
1 PhD Kermanshah Azad University, Iran./Judge
2 PhD student of Public Law, University of Tehran, Farabi college, Iran
3 Master of Public Law Allameh Tabatabai University, Tehran, Iran
10.22034/mral.2022.560603.1363
Abstract
The article analyzes the rationales for rule of legal obtained evidence in administrative proceeding with the aim of establishing the ideal type of obtained evidence system. In administrative proceedings similar to criminal and civil proceedings, the reason for obtaining of evidence by the court is raised. Since the discussion of obtaining evidence by the court is inconsistent with the principle of impartiality of the judge, it is important to analyze it in an administrative procedure similar to civil and criminal proceedings. On the other hand, there is the issue of what is the legal sanction in the administrative proceedings if the evidence obtains illegally. The survey will be carried out with Descriptive-analysis method and gather data by use of books and article in this respect. Result of this survey show that in adversarial administrative proceeding such as labor proceeding, general rule is that a judge is forbidden to obtain evidence for or against each party, but in disciplinary proceedings, such as board of handling of breach of disciplinary, judge has active role in obtaining evidence. In judicial precedent of administrative court of justice and law and provisions concerning to administrative proceeding, general rule of legal obtaining of evidence is not presented in comprehensive way.
Keywords
Subjects

Judiciary Research Institute, Collection of Judicial Opinions of Administrative Court Branches, Tehran: Department of Jurisdiction of the Country, First Edition, 2013.
Shams, Abdullah, Code of Civil Procedure: Fundamental Period (Volume 1), Tehran: Drak, 57th edition, 2019.
Tabatabai Motamani, Manouchehr, Comparative Administrative Law, Tehran: Samit, 3rd edition, 2019.
Goldouzian, Iraj, evidence to prove the case, Tehran: Mizan, 2014.
Moin, Mohammad, Farhang Farsi (Volume 2), Tehran: Amir Kabir, 2016.
Ahmadlou, Mohammad, "Validity of learning reason by illegal method in Iranian criminal law", 5th International and National Conference on Management, Accounting and Law Studies, Azar 1400.
Aghaei Touq, Muslim, "Types of administrative lawsuits in Iran and France", Judicial Law Perspectives Quarterly, twenty-third volume, number 83, 2017.
Amirzadeh Khayabani, Ali and Mohammad Amin Farid, "The principle of legitimacy of reason in the criminal proceedings of Iran and England", Islamic Jurisprudence and Fundamentals of Islamic Law, No. 3, 2017.
Tedin, Abbas and Zeinab Bagherinejad, "Ensuring a fair trial in the light of the principle of legitimacy of criminal evidence acquisition", Legal Research Journal, No. 53, 2019.
Halalkhor Mirkla, Mahdi, Abbas Taddin and Rajab Goldoost Joybari, "Corresponding jurisprudential and legal principles and rules on the study of evidence in Iranian criminal law with an emphasis on the jurisprudence of the International Criminal Court", Critical Research Journal of Humanities Texts and Programs, Year 20, Number 11 , 2014.
Ranjbar, Ahmed, "Proof of interest in public law litigation", Journal of Administrative Law, Year 5, Number 14, 2017.
Taheri Bejad, Mohammad Ali, "Determining the regime of criminal reasons in Iran's judicial system, criminal sciences", in: Collection of essays in honor of Dr. Mohammad Ashuri, Tehran: Samit, 2013.
Qamari, Ismail et al., "An analysis of the application of the rule of legitimacy of the acquisition of evidence in administrative proceedings", Administrative Law Quarterly, Year 8, Number 24, 2018.
Goldouzian, Iraj, "Void reason and its effects in different legal systems", Law Quarterly (Journal of Faculty of Law and Political Science), No. 26, 2012.
Mashhadi, Ali, "Fundamentals and Issues of Litigation Fees in Administrative Lawsuits: A Case Study of the Court of Administrative Justice", Public Law Research Quarterly, Year 20, Number 59, 2017.
Hedavand, Mehdi, speech at the scientific meeting "Education of reason in cases of the Court of Administrative Justice", May 18, 2016, Shahid Beheshti University.
Labor Procedure, 1392.
Executive Regulations of the Administrative Offenses Handling Law, 1373.
The Executive Regulations of the Law on Disciplinary Regulations of the Faculty of Universities and Higher Education and Research Institutions of the country, 1365 and subsequent amendments.
Constitution, 1358.
Civil Procedure Law, 1379.
Law on Organizations and Procedures of the Court of Administrative Justice, 2013.
The Administrative Offenses Handling Law, 1371.
Law on Disciplinary Regulations of Universities and Higher Education and Research Institutions of the country, 1364.
European Convention for the Protection of Human Rights and Fundamental Freedoms, 1948.
Convention for the Prohibition of Torture and Other Cruel Treatment or Punishment, 1975.
International Covenant on Civil and Political Rights, 1966.
 

Ashworth, A., “Excluding Evidence as Protecting Rights”, 3 Criminal Law Review, 1977, 723–735.
Grünwald, A., “Beweisverbote und Verwertungsverbote im Strafverfahren”, 21 Juristenseitung, 1966, 489–501.
Jackson, John D. & Summers, Sarah J., The Internationalization of Criminal Evidence: Beyond the Common Law and Civil Law Traditions, Cambridge, 2012.
Macula, L., "The Potential to Secure a Fair Trial Through Evidence Exclusion: A Swiss Perspective", in: Gless, Sabine/Richter, Thomas (eds.), Do Exclusionary Rules Ensure a Fair Trial? A Comparative Perspective on Evidentiary Rules, Cham, 2019, 15-60.
Slobogin, C., "A Comparative Perspective on the Exclusionary Rule in Search and Seizure Cases", in: Ross, Jacqueline/Thaman, Stephen (eds.), Comparative Criminal Procedure, Cheltenham UK, 2016, 280-307.
Spendel, G., “Beweisverbote im Strafprozess”, 19 Neue Juristische Wochenschrift, 1966, 1102–1108.
Turner, J. "The Exclusionary Rule as a Symbol of the Rule of Law", 67 SMU Law Review, 2014, pp. 821–833.
Turner, J. and Weigend, T., "The Purposes and Functions of Exclusionary Rules: A Comparative Overview", Faculty Journal Articles and Book Chapter, 2019.
www.sajed.divan-edalat.ir.
Volume 5, Issue 16 - Serial Number 16
Fifth year, 16th issue, ّ Fall 2023
Summer 2023
Pages 111-133

  • Receive Date 20 August 2022
  • Revise Date 15 October 2022
  • Accept Date 01 November 2022