Iranian Legal System

 Background to the Iranian Legal System

In 1906, the Iranian regime of absolute monarchy was transformed into a constitutional monarchy. With the changing of the governing regime, Iran saw in the same year the foundation of a parliament and the establishment of a new legal and judicial system.  

The first set of comprehensive laws concerning the new judicial system were the law on the rules of civil procedure and the law on the judicial organization, which were promulgated more than 106 years ago, in 1908. These laws were, in large part, based on the French law.

Since the Iranian legal system is based on codified rules, the legal sources are comprised of the texts of law, customary law, jurisprudence and doctrine.

In the Iranian legal system, the judge must render his judgment on the basis of the rules of law. According to Principle one hundred and sixty – six of the Constitution of the Islamic Republic of Iran (the “Constitution”), “judgments of courts must be substantiated and supported by the legal provisions and the principles on the basis of which the judgments have been rendered” . In this respect, Article 3 of the Code of Civil Procedure requires the judges of the tribunals to hear the claims and enter judgment according to the rules of law. Like European civil law systems, the Iranian legal system is focused on what civil jurists refer to as “positive law”. That is to say, judges must first base their decision on legislative provisions such as statutes or codes. If the statute or code provides no clear answer to a question, the judge may base his decision on jurisprudence. However , unlike common law systems , jurisprudence does not consist of previous cases rendered by judges but is limited to those cases that are decided by the judgment of the Plenary Assembly of the Supreme Court of Iran , that are tantamount to law.

 Whenever the President of the Supreme Court or the Attorney General has knowledge of opposing decisions rendered on the same issue, they are required to seek the opinion of a quorum of the Supreme Court, sitting en banc. The quorum, constituted by the presence of a minimum of three of the Presidents and Counsels, the judge second in command of the Chambers, presided over by the President of the Supreme Court or his Deputy , and the presence of the Attorney General or his representative. In practice, a quorum is comprised of approximately 60 Supreme Court Judges. The Supreme Court reviews the matter and renders a majority opinion. The opinion regarding similar matters becomes mandatory for jurisdictions, but is not retroactive.

The Competent Court

In accordance with Article 11 of the Iranian Code of Civil Procedure, the competent court for hearing a civil action, is the court of the defendant’s domicile. The legislator has not made any distinction in that respect between foreigners and nationals. Save in cases where the parties have agreed on the jurisdiction of a different court in the contract or in a separate agreement, the case shall be heard before the court of the domicile of the defendant.

 The Court of First Instance

If the plaintiff is willing to bring an action in Iran, such action would be commenced before the Public Tribunal. Public Tribunals are divided into civil and criminal chambers.

The Public Tribunals are subject to the principle of a sole judge. All procedures and investigations are either carried out personally or under the supervision of this judge who also declares the closure of the proceedings and renders judgment.

To file suit, the claimant must submit his statement of claim and copies of all relevant documents to the registry of the bureau of the First Chamber of Public Tribunals in duplicate and, in case of plurality of defendants, in as many copies as the number of defendants plus one. The President of the First Chamber, who is an important judicial figure, shall refer the file to one of the Chambers of the Public Civil Tribunals. He is the sole person vested with the power to choose the Tribunal that will investigate the case and neither the parties, nor any other authority, can prevail himself of this right.

Once the case has been distributed, the designated Tribunal shall fix the day and time of the hearing, send a copy of the statement of claim and documents to the defendant(s) and summon the parties for the hearing. If the defendant is domiciled abroad, the date of the notice shall be at least 2 months prior to the hearing.

 Articles 183 et seq. of the Iranian Civil Code provides clear and precise regulations on the question of contracts. This section of the Civil Code was ratified by the legislature in 1928 and although the civil law underwent a few modifications and amendments, particularly in the domain of matrimonial law, in 1982 and 1991, the sections regarding contractual principles are unchanged.

Apart from the Civil Code, there exist precise and well – defined regulations regarding commercial transactions and the legal relationship between merchants and commercial companies in the Commercial Code. This law was enacted in 1932 and the section relating to Public and Private Joint Stock Companies was passed by the legislature in 1968.

The parties to a claim are free to appear personally at the hearings or to elect attorneys. The courts hear all parties and record their pleadings in the minutes of the hearings. If evidence is to be administered by witnesses, they are summoned to provide testimony before the judge at the time fixed by the court.

Should expert evidence be required in a case, the parties are free to introduce it at their own initiative. As in other civil law jurisdictions, it is also common for the Court to appoint its own expert, usually after receipt of any expert evidence by the parties. To assist Courts in dealing with experts, an Association of Legal Experts of the Judiciary was established in 1979. According to the law, the Legal Experts of the Administration of Justice are independent from the State and the Judiciary. Expertise licenses are issued by the Association of Legal Experts to individuals who meet the legal requirements. Disciplinary action against the Experts and the suspension or annulment of their expertise permits is vested in the Association of Judicial Experts.

Iranian courts proof and apply foreign law where necessary in the same manner as European civil law courts , that is to say through expert evidence supplied by the parties or by the Court’s own appointment of an expert in the foreign law. The rule of conflict of laws in contracts is defined in Article 968 of the Civil Code which provides that “obligations resulting from contracts are subject to the law of the place of conclusion of the Contract, unless both contracting parties are foreigners and have subjected it expressly or impliedly to another law”. An Iranian judge will therefore determine the law applicable to a contractual obligation with reference to the said Article.

The judge personally hears and assesses the claims and the grounds invoked and, if necessary, refers the matter to experts and uses their findings. After completion of the hearings, the judge pronounces the termination of the proceedings by rendering and notifying his decision to the parties.

The party against whom the judgment is rendered is entitled to appeal the decision within 20 days as of notification of judgment (at his domicile by the process-server or in person at the court for actual service) if he resides in Iran or within two months if he resides abroad. 

The Court of Appeal

A Court of Appeal is established at the capital of each province in order to act as an appellate instance for decisions subject to appeal and rendered by the Public Tribunals under its jurisdiction. The Courts of Appeal may be divided into several chambers if there is an influx of matters.

The appeal is heard before the Provincial Court. This court is comprised of three more experienced judges (these judges should normally have a judicial experience of a minimum of 15 to 20 years) . Two judges oversee each case and, if they achieve a concurring opinion, they render their decision and if they have differing opinions, they are joined by a third judge and the court’s ruling is rendered with a majority of two out of three votes.

As in the case of Public Tribunals, the cases are distributed to the chambers of the courts by either the President or the First Chamber to the exclusion of any other authority or person. The Provincial Court hears the arguments of the appellant and, as with the Public Tribunals, the judges of the chambers review the grounds invoked at this stage. The Court of Appeal affirms the first instance judgment if it finds it to be correct, or dismisses it and enters judgment according to its own opinion.

The Court of Appeal can review the case on both the facts and the merits and may hear witnesses either at the demand of the parties or at the initiative of the judges.

The Supreme Court

A further appeal exists as of right to the Supreme Court of Iran for commercial / civil matters with a value of greater than IR Rls 30 million. The Supreme Court is seated in Tehran. However, if the Head of the Judiciary deems it necessary, its chambers can be established in other cities. The Supreme Court is divided into civil and criminal chambers, the numbers of which (currently at  some 40 ) may vary according to need. The President of the First Chamber is the acting President of the Court. The cases are distributed to the different chambers upon his instructions or those of the President of another Chamber appointed by him. Each Chamber is comprised of three judges. Each should have a minimum of 21 years of judicial experience. The President of each Chamber should have a minimum of 24 years of judicial experience.

The most essential function of the Supreme Court is to oversee the correct application of the law by hearing through its chambers, the appeals made against the judgments rendered by the Tribunals in civil and criminal matters. Appeals to the Supreme Court are conducted in writing. The Supreme Court only reviews the cases from a formal point of view and the correct application of the law and does not enter into the merits. Two members of the chamber review the cases and enter judgment after consultation or rather deliberation. In case of a difference of opinion between the two members, they are joined by a third member, designated by the President of the Supreme Court, and the majority ruling will prevail.

In principle, the Supreme Court only has the power to affirm a lower court decision or to quash it and refer it back to the lower court for rehearing in conformity with the directions the Supreme Court may give. Generally the Supreme Court cannot render its own decision on the merits. When a case is quashed and referred back to a lower court and the lower court rules according to the initial ruling and the matter is again appealed to the Supreme Court, and the Supreme Court does not accept the second ruling, then the merits of the case will be investigated by the Supreme Court.

The Judges

Employment of the Judges

The employment and promotion of judges within the Iranian judicial system is modeled on the European civil law system, and particularly on the French system. As a result, judges enter into their judicial function directly after graduation. Judges normally begin in a junior capacity such as a small claims court and gradually are elevated to more senior judicial positions as their experience and reputations grows. According to the  “Executory Regulations of the Magistrates’ Selection and Employment Act” , enacted in 2000 , each year the judiciary proceeds with publicizing and holding an entry examination for the selection and employment of judicial personnel.

The candidates for the examination must hold, from an academic point of view, a B.A. in law or a Proficiency Level from Clerical Schools (amounting or corresponding to around 10 years of Islamic Legal Studies) . Apart from these qualifications, the legislator has laid out other mandatory conditions for participating in the entry examination leading to employment of magistrates, such as the possession of Iranian nationality, absence of criminal record, and physical aptitude. The individuals with the best academic results in the examination are invited to attend an 18 – month internship program. The internship is followed in an academic and practical manner. During this course, the interns must be present during working hours at the courts or public prosecutors’ offices in order to become familiarized with the judicial process. During the same 18 months, the interns are required to follow academic classes. The legal courses and lectures are dispensed by experienced magistrates with particular emphasis on the practical aspect of matters.

During the course of the internship, the interns are legally prohibited from participating in judicial decisions. The internship is followed by exams and those who pass these exams, upon taking an oath before the head of the judiciary or his deputy to the effect that they shall endeavor” …. Always to seek the truth and redress the rights and make justice prevail ….” , become members of the judiciary.

Professional Echelons of Judges

Judges are appointed to judicial posts according to their level of experience and professional echelon. The “Rules regarding the designation of professional categories and conditions regarding the modification of status and promotion of judges”, enacted on 12 June 1995, provide for eight categories of judicial positions.

Each judicial category has a variety of echelons. Promotion from one echelon to the next requires a three – year tenure at each echelon. Furthermore, a change of position or category is dependent on an evaluation of the person’s capacities as a judge by the individual’s direct supervisor and the Magistrates’ Supreme Disciplinary Court. This system very much follows, in theory at least,  the French system of judicial organization.

Independence of the Judges

The Iranian judicial system describes itself as being attentive to the independence of judges and rejects as non-founded critique made especially in relation to some high profile cases. In support of this, the Iranian Judiciary refers to  Principle 164 of the Constitution of the Islamic Republic of Iran stipulates that judges are invested with professional immunity and cannot be removed from office , temporarily or permanently , nor can their seat of exercise or post be changed , before being tried and proven guilty of an offence. The criminal prosecution of judges is subject to special procedures. According to Article 42 of the  “Law Modifying Certain Sections of the Principles of Judicial Organization and the Employment of Judges”  enacted on 21 February 1955 , “whenever , in the course of proceedings , it is discovered that a judicial employee has committed a misdemeanor or crime and that the disciplinary prosecutor of magistrates deems the accusation to be legally justifiable of criminal proceedings , he requests the High Disciplinary Court to suspend the accused from his functions until the final judgment of the criminal jurisdiction , and the High Disciplinary Court shall render the appropriate order upon review of the grounds . If the magistrate is later found to be innocent, the period of suspension shall be considered as part of his services with all attached dues and rights “

In return for these privileges, which the legislature has bestowed on the magistrates in order to safeguard their independence, it has also set certain limitations. According to Article 52 of the  “Law Modifying Certain Sections of the Principles of Judicial Organization and the Employment of Judges” enacted on 21 February 1955 , magistrates are prohibited from joining political parties and affiliated organizations and publishing of political periodicals and periodicals of a political party. What is more, according to Article 470 of the new Code of Civil Procedure, “judges and judicial employees are prohibited to act as arbitrators, even with the consent of the parties “.

Attorneys at Law

Although the profession of attorney has existed in Iran since ancient times, the rules and regulations regarding attorneys were codified for the first time in Iran in the Judicial Organization Act of 1908 and subsequently modified by virtue of the Act for the Amendment of Judicial Organization of 1928. After the latter date, various laws regarding attorneys at law have been enacted in Iran, the most important of the Attorneys at Law Act of January 1937, the Law on the Independence of the Bar Association of 1952 and, finally, the law on the Qualification of Attorneys’ Licenses of Spring 1997.

In view of the existing rules and regulations, a presentation of the Bar Association, the conditions for acceding to the profession of attorney and the right to appoint attorneys follows hereunder.

The Bar Association

According to Article 1 of the Law on the Independence of the Bar Association enacted in 1952, “the Bar Association is an independent and legal entity established at the seat of each Provincial Court”. Pursuant to the enactment of this law, some sixty years ago, the Bar Association was established as an institution independent from the State and there exist presently 25 Bar Associations. According to the same Article, the establishment of the Bar Association in each jurisdiction is subject to a quorum of at least 60 practicing lawyers in that jurisdiction and if the number of lawyers does not attain this mark, the lawyers are subject to the rules and regulations of the Central (Tehran) Bar Association. Up to present, eleven Bar Associations have been established in different provinces of Iran.

The Bar Association is composed of four pillars which are (i) the General Assembly, (ii) the Board of Directors, (iii) the Disciplinary Prosecution and (iv) the Magistrates’ Disciplinary Court. Apart from these pillars there also exist other departments such as the Bureau of Legal Assistance or the Internship Commission, which carry out their particular functions within the Bar Association.

Following graduation with a B.A. in Law, candidates can apply to sit for an entrance examination and following admission they shall follow a legal internship for a minimum of one and a half years. Following the internship, interns must pass written and oral exams administered by the Bar Association. Candidates for admission to the bar must swear an oath, namely “…. To always respect the laws and rules and have as my only intention justice and redress of rights , and not to say or act but in honor of justice and the profession.  … to let justice and truth guide my personal actions and those undertaken as attorney and to defend what is right and let my honor be the guarantee of this oath … .” , before being provided with the attorney license . Any violation of this oath is subject to level 5 of disciplinary measures (suspension of the right to practice as attorney from 3 months to 3 years) .

Those who thus obtain their permits are authorized to practice as attorneys in litigations at all levels, from the Court of First Instance to the Supreme Court. However, their office shall be located within the jurisdiction of the Bar, which has granted the license.

The legislator, in order to enhance the proper exercise of their role, has provided certain guarantees for attorneys, which include the following:

Article 14 of the Act on the Independence of the Bar Association stipulates that “… no attorney can be suspended or prohibited from the exercise of his profession, in the absence of a final decision from the Disciplinary Court “ . The Disciplinary Court can issue the temporary suspension of an attorney who is undergoing disciplinary proceedings upon request of the Minister of Justice or the President of the Bar Association. Furthermore, based on Note 3 to the Act concerning the election of Attorneys by the Parties to Claims adopted in 1991 by the Expediency Council, providing that “the attorney, when acting in defense, shall enjoy immunities granted to those acting in judicial offices” .

The Right to elect and be assisted by counsel

According to Principle thirty – five of the Constitution, “In all courts of law the parties have the right to elect an attorney and if they do not have the means to elect an attorney, arrangements must be made to enable them to elect an attorney” . A copy of this provision is enclosed as AH1.

Legal assistance to individuals who do not have the means to elect attorney originates from the Attorney Act of 14 February 1937. According to Article 24 of this law “those who do not have the means to pay attorneys’ fees may request the assistance of the Bar Association …” .  On this basis, a structure named the Bureau of Legal Assistance has been established within the Bar Association. This Bureau reviews the requests for legal aid, and provides applicants with legal advice and, if necessary, free legal assistance.

There are no restrictions on attorneys with respect to the nature of claim or the parties concerned. There are numerous cases where an attorney has accepted to defend natural persons, be they Iranian or alien, against the State and State enterprises.

It should also be noted that there are numerous cases involving claims of foreigners against Iranian government organizations, in which the foreigners succeeded.

Iran has a vigorous and independent Bar Association. Like law societies and bar associations in Europe and North America , the Iranian Bar Association lobbies vigorously against government legislation or conduct that it believes could potentially interfere with the independence of the bar , the independence of the judiciary , freedom of speech or other human rights . The Iranian bar has often spoken out in defense of human rights interests through public declarations, published articles, conferences, seminars and interviews by individual members.

Filing Claims by Aliens

The Position of Positive Law

According to Article 961 of the Iranian Civil Code, apart from exceptions stipulated by law, foreign nationals are entitled to the totality of rights enjoyed by Iranian nationals. Legal exceptions to this principle are rare and apply to limited situations involving issues such as foreign ownership of certain types of property, rights of personal status which the foreign national does not accept (such as polygamy, which even for Iranians is extremely rare , and rights of guardianship of incompetents  i.e. legally incapacitated or interdicted persons which are reserved to Iranian nationals ) .

According to Principle thirty – four of the Constitution, seeking justice is an indisputable right of every individual. All persons can have recourse to the courts in order to claim their rights and in this respect there is no distinction between Iranian and foreign nationals.

In Iran, all individuals, including foreign nationals, can file suit against the State and State enterprises in order to seek redress of the rights under claim. The equality of parties in legal proceedings is therefore an imperative and recognized principle. Judges are supposed to be independent and to hear the claim or grievances of the aggrieved party and to enter the appropriate judgment, in the absence of any partiality and according to the law without regard to the nationality of the parties.

It is to be noted that numerous claims exist between Iranian state organizations and foreign or Iranian nationals that have resulted in findings against governmental entities.