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Government & Parliament
06.03.2007 - Source: US Department of State
The court system is subject to government and religious influence ("Country Report on Human Rights Practices 2006") [ID 19542]
"The constitution provides that the judiciary is "an independent power;" however, in practice the court system was subject to government and religious influence. After the 1979 revolution, the judicial system was revised to conform to an Islamic canon based on the Koran, Sunna (the traditions of the Prophet), and other Islamic sources. The constitution provides that the head of the judiciary shall be a cleric chosen by the supreme leader. The head of the Supreme Court and Prosecutor-General also must be clerics. Women are barred from serving as certain types of judges.
There are several court systems. The two most active are the traditional courts, which adjudicate civil and criminal offenses, and the Islamic revolutionary courts. The latter try offenses viewed as potentially threatening to the Islamic Republic, including threats to internal or external security, narcotics and economic crimes, and official corruption. A special clerical court examines alleged transgressions within the clerical establishment, and a military court investigates crimes connected with military or security duties. A press court hears complaints against publishers, editors, and writers. The Supreme Court has limited review authority.
HRW noted in a 2004 report that the judiciary was at the core of suppressing political dissent and that, in practice, it violated due process rights at every level, including the right to be promptly charged; have access to legal counsel; be tried before a competent, independent, and impartial court in a public hearing; and have right of appeal. Detainees were often not clear of their legal status. Numerous observers considered Tehran Public Prosecutor Saeed Mortazavi the most notorious persecutor of political dissidents and critics."
08.03.2006 - Source: US Department of State
General information on the judiciary system ("Country Report on Human Rights Practices 2005") [#46058], [ID 18486]
"The constitution provides that the judiciary is "an independent power"; however, in practice the court system was subject to government and religious influence. After the 1979 revolution, the judicial system was revised to conform to an Islamic canon based on the Koran, Sunna, and other Islamic sources. The constitution provides that the head of the judiciary shall be a cleric chosen by the supreme leader. The head of the supreme court and prosecutor general also must be clerics.Women are barred from serving as certain types of judges.
There are several court systems. The two most active are the traditional courts, which adjudicate civil and criminal offenses, and the Islamic revolutionary courts. The latter try offenses viewed as potentially threatening to the Islamic Republic, including threats to internal or external security, narcotics and economic crimes, and official corruption. A special clerical court examines alleged transgressions within the clerical establishment, and a military court investigates crimes committed in connection with military or security duties. A press court hears complaints against publishers, editors, and writers in the media. The supreme court has limited review authority.
HRW noted in a 2004 report that the judiciary was at the core of suppressing political dissent and that, in practice, it violated due process rights at every level, including the right to be promptly charged; have access to legal counsel; be tried before a competent, independent, and impartial court in a public hearing; and have right of appeal. Detainees were often not clear of their legal status. Numerous observers considered Tehran Public Prosecutor Mortazavi the most notorious persecutor of political dissidents and critics."
06.09.2005 - Source: Radio Free Europe/Radio Liberty
Hardline legislators promote bill reducing parliamentary oversight of Intelligence and Security Ministry; ministry personnel was involved in serial murders of dissidents ("Iran: Who Watches The Watchers?") [#36457], [ID 8400]
08.2005 - Source: Freedom House
Judiciary ("Freedom in the World 2005") [#41317], [ID 8401]
"[...]The judiciary is not independent. The Supreme Leader directly appoints the head of the judiciary, who in turn appoints senior judges. Civil courts provide some procedural safeguards, though judges often serve simultaneously as prosecutors during trials. Political and other sensitive cases are tried before Revolutionary Courts, where detainees are denied access to legal counsel and due process is ignored. Clerics who criticize the conservative establishment can be arrested and tried before the Special Court for the Clergy.[...]"
25.05.2005 - Source: Amnesty International
Impunity ("Annual Report 2005") [#32306], [ID 8405]
Impunity for human rights violations resulted in political instability and mistrust of the judiciary, which was perceived by many human rights activists as unwilling to uphold the law in an impartial manner.
In July, Mohammad Reza Aqdam Ahmadi, a Ministry of Intelligence official, went on trial for participating in the “quasi-intentional murder” of Zahra Kazemi, a photojournalist who died in custody in 2003. He was acquitted following a two-day trial. Following his acquittal, a spokesperson for the judiciary stated that Zahra Kazemi’s death must have been an accident, despite forensic reports prepared following her death which indicated that she was murdered. International observers – including UN Special Rapporteurs on freedom of opinion and expression; on the independence of judges and lawyers; and on torture – condemned the flagrantly flawed proceedings. The court ordered the state to pay the family of the deceased the legally required monetary compensation as no culprit had been found. The family lodged an appeal which was pending at the end of the year.
Brothers Manuchehr and Akbar Mohammadi, and Ahmadi Batebi, who were among the students detained, tortured and sentenced after unfair trials following student demonstrations in 1999, continued to face violence while in custody. The brothers required medical treatment in the course of the year for their injuries. No investigations were carried out into their allegations of ill-treatment in custody.
Six years after the murders of two political activists and three writers – a case known in Iran as the “Serial Murders” – no steps had been taken to bring those who ordered the killings to justice. In 1999 it had been acknowledged that the killings had been committed by state officials. During the year, former Intelligence Minister Qorbanali Dorri Nafafabadi, who had been “excused” from taking part in earlier hearings in the case, was reportedly appointed state prosecutor. Nasser Zarafshan, a human rights defender and the lawyer for the families of the two political activists, remained incarcerated following an unfair trial in 2002. [...]"
04.2005 - Source: UK Home Office
Reform of the judicary ("Country Report - April 2005") [#31980], [ID 8402]
"[...]5.25 The United Nations Special Representative stated in his report of 16 January 2002 that the long awaited bill on the reform of the Judiciary had finally reached the Majlis. At the time of preparation of this report, he had not seen a detailed description of the bill. However, according to press reports, it stipulated that exceptional tribunals like the revolutionary courts would be able to deal only with cases explicitly referred to them by law. Officials and military personnel would be tried only by Tehran’s Criminal Courts. If this worked out to be the case in practice, it would be a major improvement. [10p](pg7) On 3 September 2003 Parliament passed legislation to form a special commission to monitor performance of the judiciary. [21bl]5.26 According to the USSD 2004, "On February 28, Judiciary Head Ayatollah Shahroudi issued a directive protecting the rights of the accused and, among other points, instructing police, judicial officials, and security agents to refrain from physical abuse when interrogating suspects. On May 2, the Majlis passed a law based on this 15-point directive in the form of the Bill on Legitimate Liberties and Civil Rights, which the Council of Guardians approved shortly thereafter. However, there is much anecdotal evidence that this law was ignored routinely in practice." [4p] (pg3) [...]"
04.2005 - Source: UK Home Office
Developments in the court system since 1982 ("Country Report - April 2005") [#31980], [ID 8403]
"[...]5.16 According to Europa 2004, in August 1982, the Supreme Court, which has 16 branches, revoked all laws dating from the previous regime which did not conform to Islam. [1a](pg433) It has limited authority to review cases. [4f](pg5) In October 1982 all courts set up prior to the Islamic Revolution were abolished. In June 1987 Ayatollah Khomeini ordered the creation of clerical courts to try members of the clergy opposed to government policy. A new system of retribution (qisas) was established, placing the emphasis on speedy justice. Islamic codes of correction were introduced in 1983, including the dismembering of a hand for theft, flogging for fornication and violations of the strict code of dress for women, and stoning for adultery. [1a](pg433)
5.17 According to an AI report of 1996, since May 1994, judges had been responsible for prosecution in public and revolutionary courts. [9a] However as reported in Payvand News in April 2003 the judiciary adopted a key reform, appointing a high profile judge Saeed Mortazavi as the prosecutor general of public and revolutionary courts in Tehran in order to fend off criticism that the judge also acted as prosecutor in trials. [53c] The International Federation for Human Rights (FIDH) is reported as stating that "The re-establishment of the function of Prosecutor in February 2003 in the judicial system was a positive step. However, the choice of Mr Mortazavi as the Attorney-General of Tehran clearly undermines this progress. Mr Mortazavi has been involved in the repression of intellectuals, journalists and peaceful demonstrators in June 2003. In addition, his responsibility in Mrs Khazemi's death has been clearly established by the Article 90 Commission. [10z](pg2) [Para 6.27] However, in the USSD 2004 Report it is, " …noted that this reform had thus far had been applied unevenly, with the judge still having major investigative responsibilities in many jurisdictions". [4p](pg6) Amnesty International has reported regularly that trial hearings are often heard in camera and that political detainees have been denied access to legal counsel during judicial proceedings, despite official assurances to the contrary. [9a] [4b](pg5) [9b] Political trials which take place within prisons are sometimes conducted secretly. Where trials and summary proceedings of political prisoners deny the detainee access to legal counsel, they breach Iran’s Constitution and also Article 14D of the International Covenant on Civil and Political Rights (ICCPR), to which Iran is a signatory. [9c](pg41) [9a] [4b](pg5) Amnesty International cites detainees in Iran having described the use of ill treatment and torture to obtain forced confessions. [9c](pg32) [...]"
08.03.2005 - Source: UN Human Rights Council (formerly UN Commission on Human Rights)
Lawyers & trials ("Civil and political rights [E/CN.4/2005/NGO/310]") [#30293], [ID 8404]
"[...] According to a recent statement by Nobel Peace Prize laureate Shirin Ebadi, Iran’s hardline judiciary is doing all it can to prevent human rights lawyers from defending political prisoners. “Judge and lawyer are each one wing of the angel of justice, but one of them has been amputated,” said Ebadi, who heads a group of Iranian human rights lawyers. “Lawyers have been in and out of jail. I have also been in prison. They keep summoning me here and there. I have been subject to threats for 10 years.” Ebadi recently received a summons and “the judge himself did not know why.” Ebadi spent 25 days in solitary confinement in 1999 and was denied access to lawyers, radio and newspapers.
Those detained by the legal authorities face an impossible task in choosing a human rights lawyer to defend them. Roozbeh Mir-Ebrahimi was arrested last autumn in a crackdown on journalists and freed at the end of 2004. His family asked Ebadi and Mohammad Seifzadeh to defend him. However, “I was told in prison that with the charge against me I risked 15 years in prison, and that with these lawyers I would receive 25 years. My interrogator forced me to reject them and said that they were only serving their own interests.”[...]"
28.02.2005 - Source: US Department of State
Cover-up of high-level officials´ involvement in murders and disappearances ("Country Report on Human Rights Practices 2004") [#29525], [ID 8406]
"[...]The 1998 murders of prominent political activists Darioush and Parvaneh Forouhar, writers Mohammad Mokhtari and Mohammad Pouyandeh, and the disappearance of political activist Pirouz Davani continued to cause controversy about what is perceived to be the Government's cover-up of involvement by high-level officials. Prominent investigative journalist Akbar Ganji, who was arrested in 2000 and sentenced to 6 years in prison for his reporting on the case, remained in prison (see Sections 1.d. and 1.e.). In 2001, the Special Representative for Iran of the Commission on Human Rights (UNSR) also reported claims that there were more than 80 killings or disappearances over a 10-year period as part of a wider campaign to silence dissent. Members of religious minority groups, including the Baha'is, evangelical Christians, and Sunni clerics were killed in recent years, allegedly by government agents or directly at the hands of authorities. [...]"
09.06.2004 - Source: Asian Centre for Human Rights
Judiciary controlled by Islamic religious clergies ("EU-Iran Dialogue on Human Rights: One step forward, two steps back (ACHRF/24/04)") [#23237], [ID 8407]
"As the Islamic religious clergies control the judiciary, its independence has been greatly hampered. The Islamic Human Rights Commission also failed to qualify as member of the Asia Pacific Forum of National Human Rights Institutions because of its failure to comply with the Paris Principles on National Human Rights Institutions."
25.02.2004 - Source: US Department of State
Despite its formal independence the Judiciary was subject to government and religious influence and is widely perceived as heavily biased against pro-Khatami reformist forces ("Country Reports on Human Rights Practices - 2003") [#19747], [ID 8408]
"The Islamic Republic of Iran [note 1] is a constitutional, theocratic republic in which Shi'a Muslim clergy dominate the key power structures. The Supreme Leader of the Islamic Revolution, Ayatollah Ali Khamene'i, dominates a tri-cameral division of power among legislative, executive, and judicial branches. Khamene'i directly controls the armed forces and exercises indirect control over the internal security forces, the judiciary, and other key institutions. [...] The Constitution provides that "the judiciary is an independent power"; however, the judicial branch is widely perceived as heavily biased against pro-Khatami reformist forces. [...]
The Constitution provides that the judiciary is "an independent power"; however, in practice the court system was subject to government and religious influence. It served as the principal vehicle of the Government to restrict freedom and reform in the society. U.N. representatives, including the UNSR, and the U.N. Working Group on Arbitrary Detention, and independent human rights organizations noted the absence of procedural safeguards in criminal trials. [...]
After the revolution, the judicial system was revised to conform to an Islamic canon based on the Koran, Sunna, and other Islamic sources. Article 157 provides that the Head of the Judiciary, currently Ayatollah Mahmoud Hashemi Shahrudi, shall be a cleric chosen by the Supreme Leader. The head of the Supreme Court and Prosecutor General also must be clerics. Women were barred from serving as judges.
Many aspects of the pre-revolutionary judicial system survived in the civil and criminal courts. For example, defendants have the right to a public trial, may choose their own lawyer, and have the right of appeal. Panels of judges adjudicate trials. There is no jury system in the civil and criminal courts. If post-revolutionary statutes did not address a situation, the Government advised judges to give precedence to their own knowledge and interpretation of Islamic law.
The U.N. Working Group on Arbitrary Detention noted in its report failures of due process in the court system, caused by the absence of a "culture of counsel" and the concentration of authority in the hands of a judge who prosecutes, investigates, and decides cases. The Working Group called for active involvement of counsel in cases, from the custody and investigation phase through the trial and appeals phases. The Working Group welcomed the 2002 reinstatement of prosecution services, after a 7-year suspension, but noted that the reforms have thus far only been applied in three jurisdictions."
10.2002 - Source: UK Home Office
UK Home Office: Shortage of lawyers ("Country Assessment - October 2002") [#9556], [ID 8409]
"4.29. The President of the Central Bar Association in Iran has described the shortage of lawyers as a potential stumbling block if lawyers are to play their role in fulfilling President Khatami's vision of a civil society. However, in 1998 the Association admitted 800 new candidates to its Bar admission course; it has established a Legal Assistance Department to make legal advice and the services of a lawyer more accessible, including to groups such as Baha'is; and a disciplinary court for lawyers within the Bar Association has been active since 1997 and deals with complaints made against lawyers perceived as not having diligently represented their client's interests. The Bar Association published an open letter in August 1998 which set out the shortcomings of the present court system and lawyers and legal officials are beginning to speak out individually on changes needed. The changes are likely to impact on the future effectiveness of the role of lawyers as advocates for human rights.
4.30. In December 2000, Judiciary Chief Mahmoud Hashemi Shahroudi announced an initiative to reform the Iranian judicial system. He said that the country is “still a long way off from having a reformed and developed judicial organization.” He also announced that 40 judges, clerks, and other officials had been arrested on corruption charges. Some sources outside the country claim that Shahroudi used this initiative to purge the judiciary of some of its more moderate elements in the guise of fighting corruption.
4.31. The United Nations Special Representative stated in his report of 16 January 2002 that the long awaited bill on the reform of the Judiciary has finally reached the Majilis. At the time of preparation of this report, he had not seen a detailed description of the bill. However, according to press reports, it stipulates that exceptional tribunals like the revolutionary courts will be able to deal only with cases explicitly referred to them by law. Officials and military personnel will be tried only by Tehran's Criminal Courts. If this works out to be the case in practice, it will be a major improvement."
16.01.2002 - Source: UN Human Rights Council (formerly UN Commission on Human Rights)
Lawyers continue to be under pressure if they defend clients unpopular with some of the elite ("Report on the situation of human rights in the Islamic Republic of Iran, prepared by the Special Representative of the Commission on Human Rights, Mr. Maurice Danby Copithorne, pursuant to Commission resolution 2001/17 (E/CN.4/2002/42)") [#5732], [ID 8410]
"38. Lawyers in Iran continue to be under pressure if they defend clients unpopular with some
of the elite. During the period under review, several more were summoned by the Judiciary,
apparently for remarks they had made, typically remarks critical of the Judiciary. For example,
Mohmoud Alizadeh Tabatabai, whose clients had accused the police of torture, was sentenced to
eight months in prison for “defaming” a former police chief. Nasser Zarafchan, a lawyer for
family members in the serial murders case, is being sued for “revealing” flaws in the verdict of
39. In this context, the Special Representative recalls Commission resolution 2001/39
of 23 April 2000, and the Basic Principles on the Role of Lawyers adopted by the
Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders
and welcomed by the General Assembly in resolution 45/166 of 18 December 1990. The
Special Representative urges the Government to respect international standards with regard
to the status of lawyers.
40. Some judges continue to violate the human rights of detainees, particularly in the pre-trial
stage (see the Special Representative’s interim report to the General Assembly A/56/278,
para. 25). The Special Representative notes that the name of Said Mortazari continues to show
up in press stories about the most egregious conduct of the Judiciary (see para. 11). The
Special Representative recalls being told by a senior Judiciary official that Mortazari was one
of 40 judges being investigated by the Disciplinary Court for Judges. Meanwhile, however, he
continues to wreak havoc with such rights as freedom of expression. The Special Representative
recommends that Judge Mortazari be immediately suspended from the bench, pending a decision
on his case by the Disciplinary Court for Judges."
ACCORD: Independence of the judiciary ("7th European Country of Origin Information Seminar Berlin, 11 - 12 June 2001: Final Report - Iran") [#7661], [ID 8411]
"Art. 156 of the Constitution states that the judiciary is ”an independent power which shall
protect individual as well as social rights and shall be responsible for the administration
of justice”. However, the way in which judicial appointments are made has resulted in
the creation of a dependent judiciary, where the requirement to pass judgement on
vague laws, as discussed below, may have contributed to the weakening of the position
The Head of the Judiciary, for example, owes his position to the Leader to such an
extent that, for example, Hadi Marvi, First Deputy to the Head of the Judiciary, reportedly
stated in 2000 that ”judges must obey the Supreme Leader and have no independence
in judgement”. The Special Representative of the UN Commission on Human Rights on
the situation of human rights in the Islamic Republic of Iran and the UN Special
Rapporteur on the Independence of Judges and Lawyers have both voiced concern
over this statement.
The Head of the Judiciary is appointed to a five-year term by the Supreme Leader, as
indeed, according to Art. 162 of the constitution, are the Chief of the Supreme Court and
the Prosecutor General. The Leader, according to the ”Core document forming part of
the reports of States Parties: Iran”, ”is the highest authority in the country” and according to Art. 110 of the Constitution, he ”has the responsibility and authority to
determine general policies of the country...”. That means that someone who fills a
political position appoints the Head of the Judiciary.
The Constitution states that the role of the Head of the Judiciary is to carry out ”the
responsibilities of the judiciary in all judicial, administrative and executive matters”.
According to Art. 158 of the Constitution, the Head of the Judiciary is responsible for the
”employment of just and worthy judges, their dismissal, appointment, transfer,
assignment to particular duties, promotions, and carrying out similar administrative
duties, in accordance with the law.”
Given that the heads of the provincial offices of the judiciary, who are appointed by the
Head of the Judiciary, appoint judges in lower-ranking positions in their respective
jurisdiction, in essence, all heads of the provincial judiciary indirectly owe their position
to the Head of Judiciary, who is in turn appointed by the Supreme Leader. As a
consequence, the judiciary is biased from the outset. What compounds this problem is
the appearance of impartiality. While Art. 158 of the Constitution provides sweeping
powers of appointment and removal of judges accorded to the Head of the Judiciary,
Art. 164 states that ”[a] judge cannot be removed, whether temporarily or permanently,
from the post he occupies except by trial and proof of his guilt, or in consequence of a
violation entailing his dismissal”. It is notable that those who will decide on the fate of a
judge also appear to be appointed and dependent on the Head of the Judiciary and his
appointments. Amnesty International is seeking clarification on these points."
00.11.2001 - ACCORD: Political influence in Iran's judicial system; no effective separation of powers ("7th European Country of Origin Information Seminar Berlin, 11 - 12 June 2001: Final Report - Iran") [#7661], [ID 8412]
"Amnesty International is concerned that the impact on the administration of justice of a system where the judiciary does not appear to be totally independent, where there is no effective separation of powers, where a judgment is required, yet where judges are personally liable is extremely grave.
The Head of the Judiciary is appointed by a political figure. A politically appointed figure makes appointments to all lower judicial posts, who owe their allegiance to the Head of the Judiciary. He in turn appoints circuit court judges or lower court judges. Those judges have to make prosecutions and deliver a judgment, no matter if it concerns divorce suits, disputes between neighbours, etc. From that point on, however, a person could be at risk of unfair trial and human rights violations. The task faced by lower and appeal court judges seems almost impossible. They must investigate and prosecute allegations, some of which may be brought by their superior, the region’s ‘chief prosecutor’. The head of the court to whom the charges were allocated by the same superior is likely to view such charges, which may have been laid in reference to extremely vague laws, favourably, precisely because they originate from his superior. However, the lower court judge also understands that he must give a ruling, even in the absence of codified law."
00.11.2001 - ACCORD: Persons can be excluded from training or qualification as a lawyer and from entry into the legal profession for reasons of expression, association or belief ("7th European Country of Origin Information Seminar Berlin, 11 - 12 June 2001: Final Report - Iran") [#7661], [ID 8413]
"It is a matter of concern that recent legislation requires the judiciary and security officials to control who can train, qualify and continue working as a lawyer. This legislation also provides for sweeping exclusions of individuals for reasons of association and belief that could lead to the exclusion of a lawyer from training or qualification on the basis of ethnic origin, religion, political or other opinion. [...]
Amnesty International has expressed its concern that Note 1 of Art. 2 of 1997's Law Concerning Quality of Obtaining License for Justice Attorneyship, dealing with those seeking apprenticeship places with Bar Associations, states that ”Bar Associations shall inquire from the competent authorities” whether individual applicants fulfill seven criteria, some of which question the expression, opinion and association of the
applicant. The same Art. provides for sweeping exclusions regarding who can become a lawyer: it specifically excludes, amongst others, those who have ”a record of membership or activity in atheist groups, misleading denominations and groups opposed to Islam as well as groups whose manifesto is based on negating divine religions.”
The judiciary and Ministry of Intelligence therefore control who may be eligible for apprenticeship places with a Bar Assocation, and later entry into the legal profession. These provisions weaken the independence of the Bar Association and limit the personal freedom and professional security of the applicant, thus limiting lawyers from providing effective defence of their clients and undermining the professional security and independence required by lawyers.
Such provisions contravene Art. 23 of the Constitution, which states that ”The investigation of people’s beliefs is forbidden and no one may be molested [sic] or taken to task for simply holding a belief”, Iran’s international commitments to freedom of expression and association under Art. 19 of the ICCPR, to which Iran is a state party, and Principle 10 of the UN Basic Principles on the Role of Lawyers. The latter calls for
governments and professional associations to ensure that there is no discrimination against a person with respect to entry to and continued practice within the legal profession on grounds of a variety of criteria including political or other opinion."
00.11.2001 - ACCORD: Judiciary retains control over Bar Association ("7th European Country of Origin Information Seminar Berlin, 11 - 12 June 2001: Final Report - Iran") [#7661], [ID 8414]
"Amnesty International notes the re-establishment of the Bar Association, with an executive board elected under supervision by the judiciary, in 1999. However, it remains concerned that lawyers are not guaranteed the rights - such as the right to independence - accorded to the profession under international standards which enable them to carry out their professional duties without fear or hindrance: as with the
qualification as a lawyer, the judiciary retains control over who can join a Bar and stand for its leadership. In addition, duties normally carried out by the Bar have been reduced or subject to erosion by the judiciary."
00.11.2001 - ACCORD: Constitutional obligation for judges to pronounce a verdict; personal liability ("7th European Country of Origin Information Seminar Berlin, 11 - 12 June 2001: Final Report - Iran") [#7661], [ID 8415]
"Amnesty International has also requested clarification regarding the constitutional obligation for judges to pronounce a verdict, even where there are no clear provisions in national legislation concerning the issues in question, and the judges’ personal responsibility for that decision.
Current arrangements appear to permit delivery by judges of a faulty or erroneous judgement due to the absence of relevant law. Such errors
are also possible where relevant laws exist, but this does not excuse the imposition of a surety or penalty on judges: current arrangements appear to contravene Principle 16 of the UN Basic Principles on the Independence of the Judiciary which states that ”judges should enjoy
personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.”
More specifically, Art. 167 of the Constitution states that ”The judge is bound to endeavour to judge each case on the basis of the codified law”, but it adds that ”In case of the absence of any such law, he has to deliver his judgement on the basis of authoritative Islamic sources and authentic fatwas. He, on the pretext of the silence of or deficiency of law in the matter, or its brevity or contradictory nature, cannot refrain from admitting and examining cases and delivering his judgement.” This means, that if there exist no relevant legal provisions the judge still has to deliver a verdict. This is very problematic given that there are many overworked judges, who are also prosecutors, and who are constitutionally required to deliver a verdict.
At the same time, judges must bear in mind that they might be held responsible for ‘losses’ incurred as a result of the decision: Art. 171 of the Constitution states that ”Whenever an individual suffers moral or material loss as the result of a default or error of the judge with respect to the subject matter of a case or the verdict delivered, or the application of a rule in a particular case, the defaulting judge must stand surety for the reparation of that loss in accordance with the Islamic criteria, if it be a case of default.”"