Etemad Examines Why Appellate Courts Are Not Convened: A Review Of The “Review” Process
Compromising defendants’ right to a defense? This was the first question that was posed by certain observers and political activists, especially jurists and attorneys, upon publication of the news that the Head of the Judiciary had issued an order stating that there is no obligation and requirement to convene courts of appeals. Gholam Hossein Esmaili, the Judiciary Branch Spokesperson first confirmed the accuracy of the news at his eighth news conference. In response to Etemad’s question concerning obtaining the Supreme Leader’s permission to convene appellate courts without the defendant and his/her attorney present, he stated: “Article 454 of the Law on the Rules of Criminal Procedure provides that it is not mandatory for the Court of Appeals to convene with all parties present in all cases, and that it is only mandatory in certain cases.” Gholam Hossein Esmaili continued: “Considering that the matter had resulted in long delays in proceedings in cases where [the appeals process] was mandatory, we presented the Majless (“Parliament”) with a proposal to amend the law, which was fortunately accepted by the Judiciary Commission, and will soon be brought up on the floor of the Majless.” Regarding obtaining the Supreme Leader’s permission in this particular regard, he stated: “Problems occur in certain cases and the matter needs the Supreme Leader’s permission; this is the procedure whereby the government, the Judiciary, and the Majless ask for the Supreme Leader’s permission when necessary, and take action once they have said permission. Other branches of government have utilized the [process of obtaining] the Supreme Leader’s permission more than the Judiciary.”
Why the Supreme Leader’s Permission?
When Seyyed Ebrahim Raisi became the Head of the Judiciary Branch, he decided to expedite the adjudication of judicial cases and alluded time and again in his various speeches to the problem of lengthy proceedings and to [the goal of] reduction of the volume of judicial cases, and to his intention to expedite adjudication. There is a belief that Article 450 of the Law on the Rules of Criminal Procedure, which provides that appellate courts of must convene a hearing in certain cases, is the reason for these delays and for lengthy proceedings: [The Article] causes delays at the appellate court level where a hearing may at times take several years to convene. That was why a need for changes to Article 450 of the Law on the Rules of Criminal Procedure was felt. And that was why some provisions of Article 450 of the Law on the Rules of Criminal Procedure were modified in the Legal and Judicial Commission. However, since these amendments and modifications had not reached the floor of the Majless, and the Head of the Judiciary insisted on reducing adjudication delays and the volume of cases, he decided to obtain the Supreme Leader’s permission regarding the non-mandatory aspect of convening court of appeal hearings, and deal with the matter [in that fashion] until such time as said modifications and amendments were approved by the Majless. The Supreme Leader’s permission allowed the Judiciary to convene the appellate courts without the defendant and his/her attorney present, and for the judges to make their final rulings on the matter [in their absence]. This caused some concern in certain circles to the effect that the loss of the opportunity to mount another defense in appellate courts in certain cases, compromises defendants’ right to a defense.
Sometimes There Is No Need for an Appellate Court
Nevertheless, the new conditions have their own critics: Mohammad Kazemi, Deputy Chief of Majless’ Legal and Judicial Commission is not altogether in agreement with the new procedure. Even though he believes that the new trend does not necessarily lead to defendants’ rights being violated, he told Etemad: “We have a number of cases that are minor cases, and others that are considered major cases. The subject matters of the minor cases are simple. Usually when a decision is made in the lower court, when the two appellate judges examine the case, they realize that there is no need to ask the defendant or the parties to appear in court, and that they can issue their ruling without the parties being present regardless of whether they uphold the lower court ruling or overturn it.”
Deputy Chief of Majless’ Legal and Judicial Commission continued: “However, there are those cases that are major cases and it appears that it is a requirement for a hearing to be held at the appellate level, for the parties to be summoned to appear, and for the appellate judges to subsequently issue their ruling.” On the subject of whether [the newly announced] process deprives a defendant of his/her right to a new defense, Kazemi said: “There is no reason [to mount a new defense] when an issue is perfectly clear. It would be great if we had 200 appellate court branches instead of 60 to examine and hear all cases de novo. Currently, however, cases take 2 or 3 years to be adjudicated. I have inspected various appellate court branches in the past month, and have seen the cases and the way in which they schedule hearings.” This Reformist representative also stated: “That was why we modified and amended the Rules of Criminal Procedure; we (in the Commission) amended the Rules of Criminal Procedure prior to obtaining the Supreme Leader’s permission. The amendment has not come to the floor of the Majless, however, and has not been sent to the Guardian Council.” According to Kazemi, “minor cases require neither an extensive trial, nor is there a need for de novo hearing [at the appellate level]; we have authorized appellate court judges to most definitely summon the parties to appear before the court if they [believe that they] are not able to issue a ruling without conducting a hearing and without the parties being present, regardless of whether the case is a major case or a minor one. Of course in minor cases they can hear the case out of turn and they can issue their ruling without summoning the parties to appear in court”.
The Necessity for the Appeals Process in Security-related, Press/Publication-related, and Political Cases
Things are not always that simple, however; they are different for political and security-related defendants. Most of the jurists and attorneys’ concerns (after hearing the news) were related to this specific group of defendants. These are defendants who are always hoping that the lower court ruling will be overturned at the appellate level, or that they can change the course of the case if they are given another opportunity to defend themselves. Not convening a hearing at the court of appeals for individuals accused of political crimes deprives them of the opportunity for a new defense, and greatly increases the possibility of upholding the ruling by the lower court.
In response to Etemad’s other question, whether or not the new procedure regarding appellate courts makes conditions more difficult for certain defendants, especially political defendants, or as others put it, security-related defendants, Mohammad Kazemi said: “In security-related, press/publication-related, and cases where individuals are found guilty by lower courts for [charges] related to political matters, it is definitely necessary that the court of appeals convenes, schedules a hearing date, and summonses the parties.” In this Majless representative’s opinion, these are major cases, and we must accept that it is a major case when the defendant is sentenced to 4 or 5 years in prison; it is therefore absolutely necessary that the court of appeals summon the defendant for a de novo hearing.
Security-related Cases and the Requirement for a Public Trial in the Presence of a Jury
Deputy Chief of Majless’ Legal and Judicial Commission stated: “I do not agree with the way security-related cases are adjudicated in the judicial system, and I believe a large number of security-related cases are subject to the Law on Political Crimes and must be tried in the presence of a jury, since that is expressly required by said law. Therefore, I do not agree that the judge determine [at his sole discretion] that some political crime is security related and [try and] sentence people without a jury present.” Kazemi said: “The Judiciary’s actions in adjudicating these types of cases are questionable in certain instances.” According to him, especially cases where society is particularly sensitive about and cases labeled as “political” by the society [at large] must be tried in the presence of the jury; the court of appeals must subsequently hear such cases. Said cases must be tried openly so that the populace gets to know the details, so that neither the individual concerned can declare an unwarranted claim of innocence, nor the Judiciary’s function be questioned. Therefore, adjudication of these types of cases must absolutely be done in public, in the presence of a jury, and with an appellate court [process] that will hear the case. A cursory look at the views and opinions of jurists, attorneys at law, and of course certain Majless representatives who specialize in judicial matters, indicates that they mostly believe that the judicial system must conduct a review of the process of appellate courts convening to hear cases – and not try instead to eliminate them – so that an appropriate mechanism can be devised to manage and deal with the issue. The Head of the Judiciary has always emphasized the need to carry out justice, and his presence at the Judiciary has ignited the hope that the presence of someone familiar with judicial matters can eliminate the weaknesses that exist in this important branch of government. Now, by requiring that political cases be tried in public and in the presence of a jury (as it has been provided for by law), Seyyed Ebrahim Raisi can put an end to the questions and doubts surrounding these cases and the sentences issued therein once and for all, and bring justice to the House of Justice.
Editor’s Explanatory Note
There is currently an encouraging and vibrant dynamism and hope at the Judiciary that God willing, the fight with corruption will be conducted in a more serious and more expeditious fashion, and that [consequently,] this institution will play a bigger role and take on a bigger share in implementing justice. Mr. Raisi’s presence, his words, his plans, and his ideas, have led most jurists to be optimistic about the future of the Judiciary. It has also encouraged journalists and various media to rush to the help of the Judiciary – regardless of their political affiliation – and to assist judges and the devoted personnel of this institution to carry out the House of Justice’s most important mission. One way to assist is to ask experts and specialists to conduct a pathology of new plans and new decisions, and analyze and evaluate the intricacies of judicial issues. In fact, we must take on our share of removing barriers and problems that block the implementation of justice.
Speed at the Cost of Accuracy and Quality
By Alireza Azarbaijani, Coordination and Planning Deputy for the Office of the President’s Vice President for Legal Affairs
Article 450(e) of the Law on the Rules of Criminal Procedure makes a vague attempt at dividing crimes into two groups of “important [or major] crimes” and “non-important [or minor] crimes”. For important crimes that carry Hadd or Qesas punishments, or, in the case of unintentional crimes, carry a Dieh punishment of more than half the amount of Dieh, it is a requirement by law that the Court of Appeals convene a hearing [to try or examine the case]; in all other cases, an appellate hearing is discretionary and dependent upon the opinion of the appellate court judges. The objective in devising this Article was to provide a defendant with an additional level of adjudication in order for the latter to state his/her claim and for his/her defense to be heard one more time – given the importance [and gravity] of the crime and the punishment therefor – and in order to prevent harm to the defendant and to reverse the lower court’s potential mistake. Although this requirement may result in the prolonging of the adjudication time in the case of important crimes, the weight and the importance of the stated punishments and the necessity to prevent innocent people from being punished demand, however, that a hearing be held at the appellate level. In the latter part of the month of Tir (mid-July) of the current year (2019), a directive was issued by the Head of the Tehran Judiciary, who is also the spokesperson for the Judiciary Branch, to the presidents of various Tehran Province Courts of Appeals (and it is not clear whether said directive is intended solely for Tehran Province Courts of Appeals Presidents or for all provinces), to the effect that the provisions of the aforementioned Article are temporarily [suspended] and consequently, the Courts of Appeals are not required to convene a hearing prior to issuing a ruling, even in the case of important crimes (similar to other crimes and as is customary in civil cases).