نوع مقاله : مقاله پژوهشی
نویسنده
دانشیار گروه حقوق جزا و جرم شناسی دانشگاه جامع علوم انتظامی امین، تهران، ایران
کلیدواژهها
عنوان مقاله English
نویسنده English
1. Introduction
Law, in its true sense, is a manifestation of the public will and a safeguard of citizens’ rights and freedoms against arbitrary actions by the state and public officials. The judicial system serves as a forum for resolving disputes between citizens and the state; however, under authoritarian regimes, it may become an instrument for suppressing citizens’ rights and freedoms. The independence of attorneys within the judiciary is one of the fundamental guarantees of the rule of law. It also facilitates oversight by a specialized and professional civil society of the conduct of judges and public officials, contributing to the effective functioning of the judicial system in protecting and realizing citizens’ rights and freedoms. In this respect, the present study aimed to examine the independence of attorneys within the judiciary, its impact on the rule of law, and its status within the Iranian judicial system.
2. Literature Review
A review of Persian-language books and articles suggests that there is no significant research on the independence of attorneys within the judiciary and its relationship to the rule of law in the Iranian judicial system.
3. Materials and Methods
The present study used a descriptive–analytical method and library-based sources to examine the independence of attorneys within the judiciary and its relationship to the rule of law in the Iranian judicial system.
4. Results and Discussion
In the Iranian judicial system, the independence of attorneys is not guaranteed, and lawyers cannot perform their professional duties independently. According to the Note to Article 48 of the Code of Criminal Procedure, only lawyers approved by the Head of the Judiciary may represent litigants in certain proceedings. The requirement for such approval fundamentally undermines the independence of lawyers, while those who receive approval remain at risk of having it revoked at any time.
Furthermore, the establishment of the Center for Judiciary Lawyers under Article 187 of the Third Development Plan has fundamentally undermined the independence of the legal profession. The possibility of denying access to a judicial file under Article 191 of the Code of Criminal Procedure—based on the investigating authority’s determination and in the absence of a specific legal criterion for the necessity of discovering the truth—further restricts the lawyer’s role. Similarly, the possibility of expelling a lawyer from a hearing under Article 354 of the Code of Criminal Procedure—in the absence of a clear legal criterion for observing court order—creates another significant limitation.
In addition, the absence of in-person advocacy by litigants’ lawyers in cases brought before the Supreme Court on appeal, as well as the lack of participation of independent lawyers in the drafting and consideration of opinions presented to the General Assembly of the Supreme Court, has further weakened the role of independent lawyers in the three realms of the rule of law.
5. Conclusion
The independence of attorneys within the judiciary prevents the instrumentalization of the judicial system by powerful individuals and institutions, protects the rule of law against the arbitrary exercise of judicial power, and ensures a fair environment for litigation and trial. When bringing legal actions against the state or powerful public officials, citizens are often hesitant or fearful of initiating proceedings. The deterrent effect of legal rules depends largely on their effective enforcement. Powerful officials are more likely to comply with the law when they know that they may be held legally accountable and prosecuted at any time for violations of legal rules.
Undoubtedly, in order to preserve their social legitimacy and prestige, states generally maintain the appearance of lawful social control and avoid openly suppressing human rights and civil liberties. For this reason, however, they may use legal and judicial mechanisms as instruments of domination and repression. In such circumstances, the rule of law is replaced by the rule by law, whereby law and the judicial system become instruments for establishing and maintaining political authority.
The independence of attorneys within the judiciary helps prevent the judicial system from being used to suppress civil rights and liberties under the influence of powerful political, security, religious, or other individuals and institutions. It also limits the use of prosecution and punishment as instruments of political domination and of state power.
کلیدواژهها English
