An Overview of Iranian Legal System and Research

By Maliheh Zare

Maliheh Zare holds a LL.M.(2012) from NYU School of Law as an Arthur T. Vanderbilt Scholar (A.H. Amirsaleh Scholar). She is a Ph.D. Candidate in Private and Islamic Law at the University of Tehran, Tehran, Iran. Maliheh passed the New York State Bar Examination and had been Admitted to the Iranian Central Bar Association (December 2008).

Published June/July 2013

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Introduction

General Information

Islamic Republic of Iran (Iran) is located in the Middle East having land boundaries with Afghanistan and Pakistan from the East, Turkey and Iraq from the West, and Azerbaijan, Armenia and Turkmenistan from the North. It borders Persian Gulf and the Gulf of Oman from the south and Caspian Sea from the north.[1] The population of Iran as of 2011 is 75,149,669.[2] Its area is 1,648,195 km2.

The official language of Iran is Farsi (Persian). The Iranian official calendar is the solar calendar and starts as of the migration of the Prophet Mohammad (hijrī-shamsī). Friday (and Thursday in some metropolitan cities) is (are) the weekly holiday(s).[3]

Political Information

Several monarchies ruled Iran until the 1979 Islamic Revolution the last of which was Mohammadreza Pahlavi as the head of Pahlavi dynasty. Since 1979, Iranian State is an Islamic State under Article 2 of the 1979 Constitution of Islamic Republic of Iran as amended in 1989(hereinafter the Constitution).

Economy

Under the Constitution, Iranian economy has three sectors; public, private and cooperatives. After the 1979 Islamic Revolution in Iran, almost all strategically situated economic sectors became nationalized or expropriated for the purpose of redistribution of wealth. Under Article 44 of the Constitution, the government has owned all major industries.[4] In that sense, it can be compared to economies in former communist states. In 2008, a new wave of criticism over the large size of government and its inefficiencies in promoting economic development in the country brought attentions to Article 44 of Constitution. A new law drafted, Law on Implementation of Article 44 of the Constitution, which redefined the limitations on the private sector participation in the economy. The law kept the core management of the government in main industries and allowed privatization of all other activities or participation of the private sector in expanding the previously public sector (Article 3).[5] The process aimed at a move to market economy and it has a policy to achieve the full privatization.

The Iranian Legal System is structured as a civil law system following French civil law system. The governemnt consists of the Supreme Leader, the executive, judicial and legislative powers. In this section, a summary of each institution will be studied.

The Supreme Leader (Welāiat-i faqīh)

The Supreme Leader is the head of the country and leads Iran in political, social and economic matters. The first Supreme Leader was Ayatollāh Siyyid Rūhullāh Khomeynī (1979- 1989) proceeded with Ayatollāh Siyyid Ali Khāminiī (1989-Present.) According to Articles 107 to 109 of the Constitution, the Supreme Leader is elected by the Assembly of Experts[6] and must be an Islamic jurist (faqih), just, pitiful, courageous and has deep understanding of the political and social issues. Under Article 110 of the Constitution, the duties of the Supreme Leader are as follows;

“1. Delineation of the general policies of the Islamic Republic of Iran after consultation with the [Expediency] Council.

2. Supervision over the proper execution of the general policies of the system.

3. Issuing decrees for national referenda.

4. Assuming supreme command of the armed forces.

5. Declaration of war and peace, and the mobilization of the armed forces.

6. Appointment, dismissal, and acceptance of resignation of:

a. The fuqahā on the Guardian Council.

b. The supreme judicial authority of the country.

c. The head of the radio and television network of the Islamic Republic of Iran.

d. The chief of the joint staff.

e. The chief commander of the Islamic Revolution Guards Corps.

f. The supreme commanders of the armed forces.

7. Resolving differences between the thre wings of the armed forces and regulation of their relations.

8. Resolving the problems, which cannot be solved by conventional methods, through the [Expediency] Council.

9. Signing the decree formalizing the election of the President of the Republic by the people…

10. Dismissal of the President of the Republic, with due regard for the interests of the country, after the Supreme Court holds him guilty of the violation of his constitutional duties, or after a vote of the Islamic Consultative Assembly testifying to his incompetence.

11. Pardoning or reducing the sentences of convicts, within the framework of Islamic criteria, on a recommendation [to that effect] from the Head of judicial power.”[7]

The Executive Power

The President is the head of the executive power and appoints the Ministers and Deputies.

The President

According to Articles 114 to 122 of the Constitution, the President is elected for maximum two consecutive four-year terms by the direct secret vote of the people by the absolute majority in the first round or the greatest number of votes in the second round. After the election, the President is appointed by the Supreme Leader and takes the oath.

Under Articles 123 to 130 of the Constitution, the President has the following duties; 1) He approves the laws passed by the Parliament and has the duty to enforce them; 2) He signs the international treaties and agreements as the representative of Iran; and 3) He appoints the ambassadors introduced by the foreign minister. Upon the sickness, death or absence of the President, his first deputy must fulfill his duties, according to Articles 131 and 132 of the Constitution.

Ministries

Under Articles 133 to 136 posits that the President appoints the ministers and introduces them to the Parliament for approval. In case of the dismissal by the President, resignation, disapproval or interpolation of any individual minister, he/she is dismissed. Article 138 states that each individual minister and the Council of Ministers have the right to issue administrative regulations to implement laws.

According to Article 137 of the Constitution, “[e]ach of the ministers is responsible for his duties to the President and the [Parliament], but in maters approved by the Council of Ministers as a whole, he is also responsible for the actions of the others.”

The Legislative Power

The legislative power is consist of Islamic Consultative Assembly (Parliament), Guardian Council and Expediency Council.

Islamic Consultative Assembly/Parliament (Majlis Shurā-yi Islāmī)

According to Articles 62 to 70 of the Constitution, the Parliament members are elected directly by the people’s secret ballots for a four-year term. The number of members from each province is determined based on its population and political and geographic factors. The number was originally two hundred seventy and increases by maximum twenty members for each ten-year period. The minorities including Zoroastrians, Jews, and Christians elect their representatives to the Parliament. The latter have two representatives and the other two have one representative each. Currently, it has 290 members and by the presence of two-thirds of them is legally in session. The sessions must be open and the minutes must be available to public live by radio and printed in official gazette.

Under Articles 71 to 93 of the Constitution, the Parliament has the following duties: 1) It passes all laws excluding the domains reserved in the Constitution; 2) The interpretation of such laws is also within its competence. The bills may either introduced by the government after the approval of the Council of Ministers or minimum 15 of Parliament members; 3) The Parliament has also the right of investigation of the public affairs, approving the international treaties and agreement and loans and international aids; 4) The Parliament has the right to issue the vote of confidence to the Council of Ministers; and 5) It may pose a question to the President or any of the ministers. It may also interpolate the President, the Council of Ministers or an individual minister.

Guardian Council (Shurā-yi Nigahbān)

According to Articles 91 to 99 of the Constitution, the Guardian Council has 12 members equally divided to religious scholars (Fuqaha) appointed by the Supreme Leader and jurists introduced by the Head of Judiciary and elected by the Parliament. The Guardian Council has the followling duties; 1)It monitors all drafts passed by the Parliament to ensure that they are in accordance with Shariā (Islamic law) as determined by fuqaha and the Constitution as determined by its jurists; 2) It has the competence to interpret the Constitution with the vote of three-forths of its members; and 3) It also supervises the elections and referenda.

Expediency Council (Majma’a Tashkhīs-e Maslahat)

Under Article 112 of the Constitution, the Expediency Council members are appointed by the Supreme Leader on a permanent or temporary basis. It is vested with the responsibility to resolve the conflicts between the Guardian Council and the Parliament. It also issues consultations to the Supreme Leader upon his reference.

The Judicial Power

The judiciary is an independant power from the Executive and Legislative branches and the Head of Judiciary is appointed by the Supreme Leader. He appoints the head of general and specific courts. According to Article 156 of the Constitution, the Judiciary has the following duties;

“1. investigating and passing judgment on grievances, violations of rights, and complaints; the resolving of litigation; the settling of disputes; and the taking of all necessary decisions and measures in probate matters as the law may determine;

2. restoring public rights and promoting justice and legitimate freedoms;

3. supervising the proper enforcement of laws;

4.uncovering crimes;prosecuting, punishing, and chastising criminals; and enacting the penalties and provisions of the Islamic Penal Code;

5. taking suitable measures to prevent the occurance of crime and to reform criminals.”[8]

Under Article 160 of the Constitution, the relationship between the Judiciary, the Executive and Legislative powers are managed by the Minister of Justice who is appointed by the President from the nominees introduced by the Head of Judiciary.

Court System[9]

Currently, the court system consists of general and specific courts. General courts have a general jurisdiction to hear all cases except for cases within the jurisdiction of the specific courts. In most courts, in addition to preliminary hearing, parties have the right to pleading to a higher court of appeal. The ordinary courts’ decisions (as opposed to the Supreme Court’s and Administrative Supreme Court’s authoritative decisions as for future cases) do not have any precedential value and are not usually codified or documented for the future reference by other courts.

General Courts (Dādgāh-hā-yi Umūmī)

General courts have the jurisdiction to hear all cases unless it is with the jurisdiction of a specific court by the law. The general courts consist of preliminary and appellate courts.

  • Preliminary Courts (Dādgāh-i badwī)

The preliminary courts’branches are devided into civil, criminal, family courts and criminal court of province.

Civil courts hear local pecuniary and nonpecuniary civil disputes[10] that is not within the jurisdiction of Dispute Settlement Councils (Shurāhā-i hal-i ikhtilāf)[11].

Note: Dispute settlement councils hear following cases between natural and legal non-governmental parties; 1) Supervising the properties of people who are under-age, insane, absent, suffering from incapacity and intestacy without any known beneficiaries; 2) pecuniary disputes in villages for a maximum of 20 million Rials and in urban areas for a maximum of 50 million Rials; 3) tenant eviction for residential properties; and 4) determining the beneficiaries of a will or intestacy. The general civil courts hear the appeal from their decisions.

Criminal courts[12] has a general jurisdiction to hear all criminal cases except for crimes within the jurisdiction of specific criminal courts, such as the criminal court of province, military courts, clergies courts, revolutionary courts and criminal branches of dispute settlement councils.

Note: Criminal dispute settlement councils hear the minor crimes, e.g. driving misdemeanors with the maximum 30 million Rials of fine or 3 months of imprisonment. The councils do not decide on imprisonment though. Criminal general courts hear the appeal from the councils’decisions.

Family courts hear following cases; 1) marriage, its conditions, and poligamy, 2) divorce and nullification of marriage,3) dowry,4) allomony, 5) guardianship, 6) paternity, and 7) capacity.

Criminal court of province hears following crimes as the preliminary court: 1) press crimes and political offenses (jarāyim-i matbū’atī wa sīyāsī), 2) all complaints against members of the Expediency Council, Guardian Council, Parliament, ministers and deputy ministrers, vice presidents as well as deputies and advisers to president, head of judiciary and head of parliament, abmassadors, general prosecutor (dādsitān), head of Supreme Audit Court (dīvān-i muhāsibāt-i kishvar), judges, governors of provinces (ustāndārān), governors (farmāndārān), 3) general (non-military) complaints against army and police officers (afsarān-i nizāmi wa intizāmī) with brigadier general rank (sartīp) and higher [major general (sarlashkar) and lieutenant general (sipahbud)], general manager of intelligence office of provinces (mudīrān-i kul-i itilā’at ustān-hā), 4) crimes with imputation (qisās uzw) punishment, and 4) crimes with capital punishment, i.e. qisās and stoning, and life imprisonment.

In the latter case, the court is in session with five judges and in all other cases with three judges. The Supreme Court hears appeals from its decisions.

  • Appellate Courts (Dādgāh-i tajdīd-nazar)

Appellate court of province hears appeals from the decisions of preliminary courts and has civil, criminal and family branches.

The Supreme Court is the highest court in both civil and penal matters. The chief of the Supreme Court is nominated by the Head of Judiciary for a five-year term. According to Article 161 of the Constitution, the Supreme Court supervises the implementation of laws by courts and issues authoritative decisions in order to ensure the uniformity of civil and penal procedure.

The Supreme Court has criminal and civil branches. Criminal branches hear appeal from the decisions of criminal courts of province and revolutionary courts. The also hear the cases againt the President under Article 110 of the Constitution. Civil branches hear appeal from decisions in cases with minimum value of 20 million Rials if the parties did not appeal to appellate courts of province. It also hears the appeal in marriage, divorce, paternity, incapacity and waqf cases either appealed to appellate courts of province or not.

It also has the jurisdiction to resolve the conflicts between courts in jurisdiciton or interpretation of laws. In the latter case, its decisions have precedential value and are authoritative.

Special Courts

In addition to general courts, some specific courts are established to hear specific cases, for example revolutionary courts, military courts and clergies courts.

1) Revolutionary Courts (Dādgāh-hā-yi Inghilāb)

Revolutionary courts are established in the center of each province and in any region with the discretion of the Head of Judiciary (ri’īs-i quvih-i qazāī’ih). They work under the supervision and administrative management of head of judicial district (huzih-i qazā’ī) and have jurisdiction to hear 1)all crimes against national and international security, muhāribih or ifsād-i fi-l-arz[national armed terrorism] (both words refer one crime under Articles 183 to 196 of the Islamic Criminal Code), 2)insulting Imam Khumeini and the Supreme Leader, 3) conspiracy against Islamic Republic of Iran or armed terrorism and destruction of institutions in order to crumble the government, 4) spying, 5) all smuggling and drugs crime, and 6) crimes under Article 49 of the Constitution (The state has to confiscate the income generated from ribā, qasb, bribery, embezzlement, larceny, gambiling, misusing waqf, fraud(misusing) in govenrmental contracts and transactions, sale of mawāt and mubāhāt land, establishing brothels and other non-sharī’a activities. The retrieved money has to be returened to the owner and in the case of unanimity has to be deposited to treasury (biyt-ul-māl)).[13]

Financial crimes subject to the jurisdiction of revolutionary courts are a) disruption of monitary or foreign currency order in the country through bulk cash(foreign currency) smuggling, production or smuggling of counterfeit national or foreign coins or banknotes, b) bulk food hoarding and selling food or agricultural products more expensive, c) causing disorder in technical mashines and raw materials market or bulk bribery in receiving production licenses with the effect of productivity policies of the government, d)attempt to smuggle the cultural heritage or national assets is smuggling even if unsuccessful and the property will be confiscated by the government, e) accepting bulk amount of money from real or legal persons in the name of muzāribih (partnership) and wasting them or disrupting the national economy, and f) group plotting to disrupt national export order by fraud in letters of credit or pricing fraud, and g) network marketing (added in1384 [2006]) (Note: The cases filed before the amendment may be heard based on the rules in effect at the time).[14]

2) Military Courts (Dādgāh-hā-yi Nizāmī)

Military courts has jurisdiction over all crimes commited by military and police forces if done in the course of their duties.[15]

3) The Clergy Courts (Dādgāh-hā-yi Vīji-yi Ruhānīat)

The clergy courts hear all criminal cases against clergies (Islamic jurists).[16]

Administrative Court (Dīvān-i idālat-i idārī)

The Administrative Court is the highest court that hears the administrative disputes. It has jurisdiciton over following cases; 1) cases that people (private parties) bring against the public (non-private, i.e. ministeries, organizations, institutes, public companies, municipalities, revolutionary institutes) employees’decisions and actions; 2) cases against administrative regulations; 3) appeal from the decisions rendered by preliminary administrative courts, such as Tax Commissions, Employee and Employer Dispute Settlement Council, and Municipality Commission under Artile 100 of the Municipality Act; and 4) cases brought by public employees regarding their employement disputes.[17]

Arbitration

According to Articles 454 to 501 of Civil Procedure of General and Revolutionary Courts Act, parties may refer their cases before or after bringing it to the court to arbitration by agreement with the agreed terms and conditions. Upon the parties’agreement and death or incapacity of any of them, the arbitration is nullified.

Exceptions: 1) The parties should not refer disputes over marriage, divorce, paternity and bankruptcy to arbitration. 2) Iranian parties should not agree on chosing an arbitrator with the same nationality as their counterparty if he/she is non-Iranian before the dispute arises. 3) Bringing a case involving public and governmental properties should be approved by the Council of Ministers and after announcing it to the Parliament. 4) In major cases and the disputes with non-Iranians, the Parliament should approve the arbitration.

Enforcement of Judgments and Arbitral Awards

In order to enforce judments and arbitral awards, the judiciay has an enforcement department. In criminal cases, police enforces the decisions and in civil cases the plaintiff should follow up on the procedure. After filing his/her request for enforcement, the enforcement department requires complete information of immovable or movable properties of the defendant that the plaintiff wishes to fulfill the judgments from. Through sale of the properties or transfer of the ownership to the plaintiff, the judgment is enforced.

Lawyering

Lawyers are members of either regional bar associations or the judiciary bar.

Regional bar associations (Kānūn wukalā-i dādgustarī)

Bar associations are independent non-profit non-political organizations established and managed by lawyers. In order to become a lawyer, an applicant must meet following requirements: 1) have a bachelor degree in law or an equivalent; and 2) successfully passe the multipule choice bar exam, finish an eighteen-month training, submit an essay on a pre-determined topic, pass the oral and written qualification exam, and take the oath.[18]

Judiciary Bar(Markaz-i umūr-i mushāvirān, wukalā wa kārshināsān-i quwiy-i qazāīyih)

Judiciary bar was established by the Judiciary in 2000. In order to obtain the license, applicants should take the judiciary bar exam, fullfill a six-month training, pass the final exam and take an oath.

Lawyers are admitted to a specific city and have to establish their law firms in that city only but they may file claims or defend cases in any court.

  • All laws, administrative regulations, the Supreme Court’s decisions and the Administrative Court’s decisions are published in Iranian Official Gazette in hard copy and are available online here.
  • The Parliament has a database of all laws, administrative regulations, the Supreme Court’s decisions and the Administrative Court’s decisions issued since it was established online .
  • The Administrative Court provides a database of all its authoritative decisions here.
  • The Iranian Central Bar Association also has an online database for doing a legal research here.
  • The list of natries is available online.
  • Iranian National Tax Administration provides a database for related information to conduct a legal research on tax issues that is available here.
  • Central Bank of Iran has a collection of laws and regulations related to banking law online.
  • Securities and Exchange Organization and Tehran Stock Exchange Corporationprovide information to conduct research on Iranian securities market and laws.
  • Articles and notes can be found at
  • http://www.magiran.com/
  • The Iranian Research Institute for Information Science and Technology
  • Scientific Information Database (SID)

Official Websites

Important Libraries

Law Faculties

Annex

Picture shows the structure of the government of Islamic Republic of Iran.[19]

[1] http://travel.nationalgeographic.com/travel/countries/iran-facts/

[2] http://www.sci.org.ir/SitePages/report_90/population_report.aspx , last visited on March 1, 2013.

[3] Per Articles 15 to 18 of the 1979, Constitution of Islamic Republic of Iran amended in 1989.

[4] Article 44 posits that “The economy of the Islamic Republic of Iran is to consist of three sectors: state, cooperative, and private, and is to be based on systematic and sound planning. The state sector is to include all large-scale and mother industries, foreign trade, major minerals, banking, insurance, power generation, dams and large-scale irrigation networks, radio and television, post, telegraph and telephone services, aviation, shipping, roads, railroads and the like; all these will be publicly owned and administered by the State. The cooperative sector is to include cooperative companies and enterprises concerned with production and distribution, in urban and rural areas, in accordance with Islamic criteria. The private sector consists of those activities concerned with agriculture, animal husbandry, industry, trade, and services that supplement the economic activities of the state and cooperative sectors. Ownership in each of these three sectors is protected by the laws of the Islamic Republic, in so far as this ownership is in conformity with the other articles of this chapter, does not go beyond the bounds of Islamic law, contributes to the economic growth and progress of the country, and does not harm society. The [precise] scope of each of these sectors, as well as the regulations and conditions governing their operation, will be specified by law.” The Constitution of Iran is available online at http://www.iranonline.com/iran/iran-info/government/constitution.html .

[5] Also, the law authorized Ministry of Economic Affairs and Finance to manage the process (Article 7.5) that later established an organization for this purpose.

[6] Under Article 108 of the Constitution, the Assembly of Experts members are elected by the direct vote of the people.

[7] English Text of the Constitution of 1979 as Amended at Referendum of 7-28-1989 1 1979 (http://heinonline.org) at 30-31.

[8] English Text of the Constitution of 1979 as Amended at Referendum of 7-28-1989 1 1979 (http://heinonline.org) at 40.

[9] The list of courts introduced in this section is not exclusive and there are other judicial and non-judicial dispute settlement bodies. This is a summary of the most important bodies.

[10] The 1379 [2000] Civil Procedure of General and Revolutionary Courts Act (Qānūn Āi’īn-i Dādrisī-i Dādgāh-hāi-i Umūmī wa Inqilāb dar Umūr-i Madanī).

[11] The 1387 [2008] Dispute Settlement Councils Act (ghānūn-i shurāhā-i hal-i ikhtilāf).

[12] The Criminal Procedure in General and Revolutionary Courts 1378 [1999] (PGRC) (Qānūn-i Aī’in-i dādrisī dādgāh-hāi umūmī wa Inqīlāb).

[13] Act Establishing General and Revolutionary Courts (Qānūn-i Tashkīl-i Dādgāh-hāyi Umūmi va Inqilāb) 1373 [1994].

[14] Act Punishing Disruption of National Economy (Qānūn-i Mujāzāt-i Ikhlālgarān dar Nizām-i Iqtisādī-i Kīshvar) 1369 [1990].

[15] Act Punishing Crimes of Military Forces (Qānūn-i mujāzāt jarāim-i nīrūhā-i musallah), 1382 [2003].

[16] Act Establishing Clergies Courts and (Qānūn-i tashkīl-i dādsarāhā wa dādgāh-hāi wīji ruhānīat) 1369 [1990].

[17] Administrative Court Act, 1385 [2007].

[18] Independence of Bar Association Act (Lāyihyeh qānūnī istiqlāl-i kānūn wukalāy-i dādgustarī) 1333[1954] and Act on How to Be Admitted to Bar Association (Qānūn-i nahviy-i akhz-i parwāniyeh wikālat) 1376[1997].

[19] Abrahamian, Ervand (2008). History of Modern Iran, at165.