In 1979, the leaders of the the newly-established Islamic Republic of Iran laid the cornerstone of the republic’s first constitution, and drafted the first of what would eventually become 177 Articles.
In Article 57 of the constitution, the three branches of the government — the legislative, executive and judiciary — were considered independent of each other, but "under the supervision of the velayat and the leadership of the ummah." In other words, the Islamic clergy, headed by the Supreme Leader, rules over the state. According to Article 61 of the Constitution, the goals and tasks assigned to the judiciary are "the settlement of disputes, the protection of public rights, the realization of justice and applying the divine punishments." In Article 156 of the same law, the judiciary was to be "the protector of individual and social rights and was responsible for the realization of justice."
Throughout the years, have the principles of “independence,” "neutrality" and "justice" been implemented in practice? Have they been the key characteristics of this institution? Public opinion, especially in recent years as social media has made this opinion easier to share and disseminate, has always shown that there is serious doubt about the independence and neutrality of Iran’s judiciary.
This is the first in a series of IranWire articles that will look at the structural problems of the judicial branch of government, relying on concrete examples and statements from legal experts to build a picture of the judiciary and whether it functions according to the principles on which it was originally based.
In October 2016, several families came forward to accuse Koran reciter Mohammad Gandom-Nejad Tusi, also known as "Saeed Tusi,” of raping and sexually harassing their children. Saeed Tusi was not an ordinary reciter or qari; he had close links to the Supreme Leader and was a member of the country’s Supreme Koranic Council. In addition, he regularly served as a judge of European Koranic recital competitions, and had himself won many international competitions. He had also been a tutor in Koranic recitation.
In an interview with the media, the families of several plaintiffs stated that sufficient evidence had been collected to prove that the reciter had raped their children. Saeed Tusi had allegedly confessed, and the text of this confession and several other documents were available as evidence, material that could have been shared widely if necessary. Mahmoud Sadeghi, a member of the 10th parliament (2016 to 2020) and a lawyer, did publish documents related to the case online. Well-known politician Ali Motahari and many other political and judicial figures made statements and commented on the charges against Tusi and the evidence against him. But in the end, the court ruled that the accused was innocent and that influential members of the Supreme Leader’s office had demanded that the case be closed.
The case is important because it is widely known among the Iranian public, and because it stands out in comparison with other cases, particularly cases against people accused of political offenses or of acting against national security. The majority of these defendants have stated that their cases lacked solid evidence and documentation. But, despite the judge in the case often acquitting the accused, these individuals were eventually sentenced.
In an interview with IranWire, the father of jailed civil society activist Atena Daemi recalled the day of his daughter’s trial at Branch 28 of the Revolutionary Court: "Atena had told the judge: ‘I am not disappointed with you; you are the equivalent of a pen. You have no choice but to issue and sign these verdicts."
What do Lawyers Say?
Iranian lawyer Mohammad Olyaeifard, who currently lives in Canada, said one of his clients had told him he had been repeatedly threatened with "six years in prison” during interrogations: "After a series of defense statements and evidence refuting the charges against him, we presented the case to the court. Finally, the judge in the case sentenced my client to the six years of imprisonment that the interrogator had wanted."
A lawyer living in Khuzestan cites a similar experience. "My client was a young man from a low-income family who complained to the influential brother of a provincial official, condemning him for earning money through making false promises and not returning the money [the family had entrusted to him]. Each time he asked for it he was subjected to force and threats. My client had significant and irrefutable evidence. Based on these documents, I argued with the judge for several months. Finally, one day when the court was closed, the judge said to me: do you think I don’t know that he has taken money from your client and not given it back? But what can I do? I have no other choice. I cannot stand against high-rank officials."
When asked "Is the judiciary an impartial and reliable institution?” Hossein Raiesi, a lawyer living in Canada, says the answer breaks down into two very different and separate aspects.
"When lawsuits are filed between people and among the members of the public, without the interests of any employee, official, or government department being involved, we can say the judiciary is relatively reliable. When people with influence prefer to go to the courts rather than pursue these matters in a personal capacity, this shows they have confidence in the courts.
"Although champerty [illegal agreements to make money out of a legal case], kidnapping, personal revenge, and smugglers all exist and take place in Iranian society and many of these cases are never handled in Iranian courts, based on the statistics of existing cases, we find that some people do regularly refer these types of cases to the judiciary.”
Raiesi points to another type of litigation, cases where the state and the government have some level of interest. In these types of cases, the structural and fundamental problems of the judiciary are clearly demonstrated, he says.
"Sometimes the judiciary has to arbitrate between the people and the government, and the government is a kind of plaintiff or a beneficiary — as in big cases of theft and embezzlements, which have both legal and private aspects — or to judge political and national security cases. These are completely different; the structural problems will manifest themselves in such lawsuits where the government has a role."
Mohammad Olyaeifard agrees with this. "In public and ordinary cases, the judiciary tries to observe the principle of impartiality, but in security cases, we cannot say it is neutral."
Is it Possible for the Judiciary to be Impartial?
"According to Article 157, the Leader must nominate a just person to head the judiciary. ‘Just’ means that person must be impartial," says Mohammad Olyaeifard. "But despite this constitutional emphasis, the head of the judiciary has never been impartial because he is appointed by and serves the Leader. He acts as the chief judge for the Leader, carrying out delegated duties. Since he is appointed by the Leader, he naturally follows the guidelines set out by the Leader in a biased manner. In other words, on a practical level, he does not observe the principle of neutrality — which is the prevailing feature of being just — because he follows the intentions of the Leader."
But why can't the judiciary of the Islamic Republic observe the principle of independence and neutrality as democratic countries do?
In response to this question, Hossein Raeisi says: "In the text of the Constitution of Iran, the judiciary is assumed to be an independent body separate from the state and the legislature, but this separation does not mean that it is separate from the entire government. Of course, this is also the case in most countries of the world: the judiciary is not separate from the whole of the government. But the difference between the performance of this institution in Iran and similar institutions in democratic countries is that in most countries of the world, mechanisms have been designed to maintain the neutrality of the judiciary. These same mechanisms place the judiciary in a position where it becomes as transparent and impartial as possible when making decisions about public and private lawsuits and complaints, including crimes against national security or political charges. It is in this area that the credibility of the judiciary is linked to the degree of impartiality of the judiciary, and this level of trust and reliance is determined by impartiality, as well as the establishment of and putting in place clear laws."
According to the lawyers IranWire spoke with, it is impossible for the Iranian judiciary to be independent because it does not operate in a democratic fashion.
“In particular, after the text of the Constitution was revised in 1989, the biggest problem that emerged in the Iranian judiciary to a greater extent than it had before was the institution’s hierarchy. The head of the judiciary has become the 'judge of the judges' with broad and unlimited powers. Of course, the same judge has an infinite sense of obedience because of his fear of the higher ranking: the Leader. The type of training judges receive, the selection of judges and the oversight of judges’ performance reinforces this issue, a kind of pyramid system that ultimately leads to obedience and corruption."
What Does it Mean When a Judiciary is Independent?
Hossein Raeisi says that independence means designing a system in which officials of the judiciary, from the highest to the lowest levels, are not under pressure, and can act independently and impartially.
"In an independent system, every judge, in any situation, is an independent and impartial person and makes his or her decision and verdict freely. In my opinion, the independence of the judiciary does not mean the independence of this branch from the executive or the legislative branch; rather, it means that the judge himself and every small part of that system can make decisions regarding the judgment between 'people and people' and 'people and government,' completely independently and without any concern. For this reason, the structure of the judiciary in Iran is a flawed one."
Mohammad Olyaeifard represented several political and civil activists when he was still in Iran and was arrested and imprisoned by Branch 26 of the Revolutionary Court on charges of “propaganda against the regime.” He recalls: "I went to Branch 26 to pursue my case. I told the judge that in the statements for which I was accused, I had only talked about the performance of the judiciary and not about the heads of the other two branches, so why have I been accused of propaganda against the regime? Mr. Pir-Abbasi said that the head of the judiciary is one of the main components of the system and criticizing and opposing him is opposition to the whole system."
In fact, these words from Judge Pir-Abbasi might say it all. "I take a salary from the system and issue a verdict for the system and in favor of the system," the judge from Branch 26 of the Revolutionary Court told Mohammad Olyaeifard, dismissing the lawyer's stance as political and not legal.