Access to justice at its most basic level shares similar concepts with access to the legal system; consequently, making courts and legal processes more accessible provides better access to justice (Bhabha, Reference Bhabha2007). In this context, Iranians who need access to justice face numerous obstacles, including failure to protect poor and marginalised groups, long delays, the lack of a legal aid system, as well as insufficient adequate and equal remedies (CCA, 2003). Iran, however, is not only a country where there is a gap between the rhetoric and reality. In fact, that unequal justice could function against the primary values of the fair trial provisions. Those with more socioeconomic resources seem to benefit from faster access to justice and also greater protection of the law than those with fewer resources. This chapter therefore focuses on exploring some of the key barriers to access to justice from a user perspective.

Having outlined the overall contextual framework of access to justice, more specifically, this chapter describes some of the more recent national reforms and initiatives with particular reference to access to justice. The analysis here is largely qualitative; it involves the review of documentation and the examination of the constitution and a number of statutes, as well as some some of the relevant research findings about barriers to access to justice in Iran.

Classification of Barriers

In the related literature, there is no common definition of a barrier to justice; however, the cases or grounds which resulted in inaccessibility are considered as the barriers to access to justice (see Cappelletti, Reference Cappelletti and Garth1979; Genn and Paterson, Reference Genn and Paterson2001; Gramatikov and Porter, Reference Gramatikov and Porter2010). Despite different contexts, most of the barriers described are common to many communities, such as cost or long delays, but some are specific to a particular social group, such as distance for those who live in rural areas.

The barriers that Iranians might face when they are seeking a legal remedy to a legal problem are more or less contextual. Even though all barriers share the same notion of inaccessibility, based on their sources, they can be classified into different groups. There are different ways of arranging these barriers; however, the following classification applies with particular reference to Iran.

The first category of barriers is in relation to the legal protection of rights. One major reason behind a lack of legal protection is that Iran is not a state party of some international human rights standards, and even if Iran is a party to the international human rights conventions there is a lack of fulfilment of these rights. Iran is a member state of many international human rights treaties, including the Charter of the United Nations and Statute of the International Court of Justice,¹ Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights,² International Convention on the Elimination of All Forms of Racial Discrimination,³ International Convention on the Suppression and Punishment of the Crime of Apartheid,⁴ International Convention against Apartheid in Sports,⁵ Convention on the Rights of the Child,⁶ Convention Relating to the Status of Refugees,⁷ Convention on the Prevention and Punishment of the Crime of Genocide,⁸ Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery,⁹ and finally, the Worst Forms of Child Labour Convention.¹⁰ However Iran has significant reservations with regard to a number of them. Also Iran is not party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,¹¹ and some weapons treaties. Moreover, some laws at the national level contradict international human rights standards, as discussed earlier. Constitutional and legal discrimination against certain social groups and minorities provides important grounds for creating legal barriers in accessing justice (for example, the nonrecognition of certain religious groups such as Bahai).¹²

Another major barrier pertains to the economic aspects of access to justice. These barriers create a broad scope of inaccessibility such as social exclusion for disadvantaged groups, institutional discrimination, lack of physical access, lack of faith in formal institutions, and also a lack of awareness of rights and legal needs. An additional barrier that relates to the economic aspect of access to justice addresses the lack of access to legal assistance. Unaffordable legal counsel and an insufficient legal aid service both prevent people from taking legal action. The following sections present more detailed discussion regarding the cost of justice and legal assistance.

Barriers to access to justice can be caused by a lack of enforcement by the police. The lack of public confidence in the police can be found by examining the cultural expression of the police operation. For example, as a Farsi proverb puts it,“police is a friend of the burglar.” Police practice has also been known to be discriminatory, not only because their attitude toward victims of crime is insensitive but also because of the unequal treatment of poor and disadvantaged groups.¹³ Police misconduct due to widespread corruption and the power struggle, particularly in the control of external factors, fails to protect poor and disadvantaged groups,¹⁴ not to mention the fact that investigation procedures are known to be inefficient and badly coordinated. Although recently there has been considerable training for Iranian police in order to increase the efficiency of the administration, the operational ethic still seems to be poor.¹⁵

With regard to various types of barriers, it must be noted that this chapter does not comprise an overview of gender-specific barriers to access to justice such as cultural issues or lack of legal knowledge. Chapter 4 evaluates gender-specific barriers, along with issues such as gender insensitivity in the justice system, lack of economic independence, legal discrimination, and fear of social exclusion, for example.

Also, this chapter does not review the access to justice barriers that are caused by the prison system because it is indeed an extensive debate. However, it is important to note that one of the most important challenges faced by the Iranian prison system (the State Prisons and Security and Corrective Measure Organization) is that it is overburdened, with a large number of prisoners who have been apprehended for drug offences. According to the Prisons Organization, 173,871 people were incarcerated in 2009–2010.¹⁶ This number amounts to about 223 prisoners per 100,000 of the population, as a result placing Iran among the ten countries of the world with the highest incarceration rates. The high percentage of male prisoners (more than 95 percent of prisoners) represents the higher percentage of the adult male population. Pretrial detainees make up 24.7 percent of the prison population and the rest have already been convicted.¹⁷ The State Prisons and Security and Corrective Measure Organization includes 253 establishments throughout the country.¹⁸

During the last few years, the Iranian Judiciary and the Prisons Organization have employed a number of different approaches to policy to try to overcome these challenges. These include a law reform policy and revising prison and penal legislation, limiting use of pretrial detention, alternatives to imprisonment, and rehabilitation mechanisms. There have also been a number of training programs (the empowerment approach) regarding prison administration, professionalism, and a code of conduct. However, the main practice pursued by the Prisons Organization is with regard to reducing the number of the accused detained while awaiting trial, since overcrowding is the main challenge. Prison conditions have improved but are still poor. The path to justice for Iranian prisoners appears to be difficult, as access to legal information is inadequate and legal assistance mechanisms for the prisoners, while they do exist, are insufficient.

A different dimension of inaccessibility involves the lack of legal empowerment. This element of inaccessibility, on an individual level, relates to internalised insecurity, cultural norms of exclusion, and public discrimination. The lack of legal empowerment largely correlates to a lack of legal awareness, both of which will be explored by this research in the next chapter.

Cost

In many litigation systems, the cost of justice commonly has been considered the main reason why people avoid seeking justice. In fact, the cost of litigation has been characterised as a key barrier to access to justice in Western societies in recent decades (Cappeletti and Garth, Reference Cappelletti and Garth1978; Silver, Reference Silver2002; Williams, Reference Williams1994; Woolf, Reference Woolf1996). In the same way, the cost of litigation in developing countries is considered to be one of the main barriers to justice (Commission on Legal Empowerment of the Poor, 2008). The literature also suggests that most research studies identify the analytical distinction between the different costs that a person has to consider in order to solve a legal problem, presenting categories such as transaction costs, transfer costs, total spending, and total litigation costs (Miller, Reference Miller2002; Silver, Reference Silver2002).

In Iran, as elsewhere, public legal culture believes that justice is extremely expensive.¹⁹ Much is said about the cost of litigation and the way in which it can exclude the poor from justice; however, no data exists that shows how much it actually costs to take a legal action through the court system, especially given the complexity of sociolegal grounds and the number of times one has to attend court or other related legal procedures. Also, there is no research data regarding the emotional costs incurred or how Iranians perceive the costs of accessing justice.

Therefore, at this initial stage of reflection, I would suggest that the costs of justice come in a variety of forms: litigation fees, fines, time, transportation, and emotional and sociocultural costs. In this classification, one practical category divides costs into out-of-pocket expenses (such as court fees, fares for travelling to court, witness fees, etc.) and non-monetary costs (time spent, emotional costs, and sociocultural costs). The differentiation criteria here will be based on Iranian market values and also the sociolegal circumstances. Time spent and long delay costs, for instance, should be regarded as non-monetary costs. In the same way, the social and cultural costs will be defined as non-monetary costs. Last but not least, this research will focus on the private costs of justice that are sustained by the individuals who have to take legal action for the resolution of disputes.²⁰ In order to explain discrete cost categories, the costs of justice will be examined from the perspective of barriers to justice.

Time Spent

The long delays associated with dispute resolution within the Iranian justice system are considered a barrier to justice (CCA, 2003). Long delays present an obstacle in resolving injustices and deprive people of their rights by not taking legal action to counter legal problems. Although there is no research to provide consistent data on the actual time a user of justice may spend on resolving a case in Iran, the time spent and long delays seem to have a significant effect on an individual’s decision about whether or not to take legal action.

Moreover, the inevitable delay is a fundamental issue regarding the expenses that seeking justice may incur as it includes the time that an individual spent, the money spent during this long period of time, and the cultural and emotional costs. While the assessment of time spent as a value is context-dependent, it might be summarised that the amount of time (days, months, or years) that a user of justice has to spend is actually the cost of access to justice.

However, I disagree with the general theory that people with higher incomes will put a higher value on time compared to those whose time is less valuable in a country like Iran.²⁶ I think people with higher incomes are more likely to benefit from access to legal assistance, which is not as costly as it is for users of justice in Western societies.²⁷ Therefore, they are able to save more time (and spend less) in dealing with other barriers such as the ineffectiveness of the delivery of justice, corruption, or lack of information.²⁸ It seems that the poor or those with lesser earnings need to spend more time (and more money) on the different levels of the path to justice starting with data collection. In short, those seeking justice spend time on different priorities, beginning with the collection of legal information, seeking help from professionals, filing the case, awaiting hearings, and travelling, in addition to many other actions.

Research showed that delays are an inherent part of any judicial process (Lind and Tyler, Reference Lind and Tyler1988). In fact, Iranian legal culture has accepted lengthy delays as an inherent element of access to justice.²⁹ However, as a Persian proverb illustrates: “justice delays but never denies”; there is a strong cultural perception that even though the demand for justice is delayed, justice will never be denied. This is because public legal culture perceives justice as an equivalent concept with a right (haqq), which is inherent and inviolable. It is interesting to note in this connection that I ran a simple Google search and came up with almost 102,000 results. Almost all of these Internet pages quoted the Persian proverb to reflect a clear message: “No matter how long it takes, justice will be done.” Also the analysis of a survey in Chapter 6 shows that most of the respondents innately perceive accessing justice (haqq) to take a long time but nevertheless, justice (haqq) will always be realised. The belief is that individuals have certain inherent and inviolable rights and justice is one of them. It therefore seems that the phrase “justice delayed is justice denied” might not be true in all sociolegal contexts, at least not in Iran.

It is important to acknowledge that such lengthy delays (etaleh dadresi) have been extensively studied by the Ministry of Justice and in academia. Notably, these studies (which are described in the following paragraphs) have examined some of the key dimensions considered as a barrier to access to justice. The purpose of this section is to provide a quantitative and demographic portrait of some of the main issues in relation to time spent between 1996 and 2008. Most of the data analysed are from the 2006 Census of Population and some complementary information from other sources (for the most part data published by the Ministry of Justice) is also used. Results presented in this section summarise the trends observed across Iran and may not reflect provincial trends.

The most recent quantitative research that can provide a general idea of average time spent on legal concerns is a sample study by the Ministry of Justice in 2007.³⁰ This study sampled almost 10,000 civil and criminal cases for a study to assess total time spent. Of these 4,375 civil cases, 4,375 criminal cases and 797 were appeal cases. The average minimum amount of time taken, from cases being brought to court and passing through all the levels of the appellate system for litigants in civil cases, was 463 days (1–2 years) and for criminal cases, 274 days (1 year). The average maximum time was reported to be 4,367 days (12 years) in civil cases and 3,313 days (9 years) in criminal cases. As claimed by the Minister of Justice,³¹ the minimum average time was reduced by the necessary measures to fifty-seven days in the court of the first instance and thirty-one days in the appeal court. Yet the average maximum amount of time for a litigant who goes through all levels of proceedings is two to five years and could be as many as ten years.³² In my personal experience, a land dispute took five years to resolve after passing through all first instance and appellate processes.

The most serious concern involves inefficiency in dealing with the large number of litigations. Most local research studies on the lengthy delays have emphasised the large numbers of cases and inefficiency in handling the case load. The huge numbers of unheard cases are claimed to be the main reason for such long delays.³³ It was revealed that 8–9 million cases were brought to the courts in 2008.³⁴ The shocking data that was proclaimed through the national media publicised that, each year, 20 million Iranians are in court.³⁵ Table 2 indicates the number of cases before the public courts and the courts of appeal (excluding the special courts) between 1996 and 2006 (1375–85).³⁶

Table 2. Cases of Public Courts and Courts of Appeal

More telling, during the period 1996 to 2006, the total number of cases filed before the courts of appeal increased by almost 30 percent. The total number of cases before the public courts has increased by almost 50 percent over the period 1996 to 2003 but decreased between 2007 and 2008. There are a number of factors involved with the falling number of cases. The computerisation of the case filing system has had a great impact on avoiding filing cases that have been previously processed. Electronic case filing has automated the index book system in the civil and criminal registry of the Public Court. This system makes a note of new cases entering the registry, the parties involved, the date and time the document is filed and by whom, as well as the type of document. In addition, the Ministry of Justice, during the period 1996–2008, issued more than 385 directives to provide better access to justice.

Most of these directives have a direct link with the decrease in the delay. The most prominent regulation that had a great deal of influence on decreasing the time spent was passed on 25 April 2005. This bylaw required the parties to have an attorney in civil proceedings; thus, the litigants of a new case entering the civil registry must introduce their lawyers. Moreover, the document must be filed by an attorney to be registered as a civil case. Obviously, the users of justice with better legal information are more likely to spend less time compared to those with less information. Therefore, compulsory legal assistance in civil proceedings reduced the chances of filing completed legal documents incorrectly and as a result, litigation derived from an inaccurate claim. To enable the poor and other vulnerable groups to have free legal assistance, the Ministry of Justice has provided legal aid clinics in all of the public courts. The Bar Association also had to introduce free legal assistance to those who were referred by the court as Mosar or an applicant for exemption based on Esar, as explained earlier.

Inadequate Human Resources

Another important barrier to access to justice with particular reference to delays arises from an insufficient number of skilled staff and competent judges. This section presents a demographic portrait of justice personnel and their evolution between 2000 and 2008 in order to examine some related issues of inadequate human resources. The main group described here is that of the court personnel. Table 3 shows the number of judges in Iran.

Table 3. Number of Judges in Iran

As Table 3 indicates, the number of judges has increased from 4,322 in 2000 to 7,939 in 2008. As a result, the number of judges per 100,000 habitants has increased from 6.8 to 10.9 in 2008.³⁷ Nevertheless, there is an unequal gap in the distribution of judges across the country. In small cities, per 100,000 habitants there is only one judge dealing with varying categories of cases, including criminal and civil procedures.³⁸ Moreover, the judiciary faces a serious shortage of personnel, which has been addressed as one explanation for the lengthy delays. The latest published data state that the number of staff in the judiciary, excluding the judges, increased by almost 13,000 between 1998 and 2008, or close to 2.01 percent.³⁹ In 2008, the number of nonjudicial personnel and judges was reported to be around 34,185,⁴⁰ representing less than 0.13 percent of a labour force of 25.2 million Iranians (2009 estimate).

Although most justice-related occupations require specific qualifications and educational requirements, only a small proportion of the staff are reported to have any postgraduate education. The only available data reveal that about 69 percent of nonjudicial personnel have either a high school diploma or just a middle school certificate; 30 percent, an associate or graduate degree; and only 1 percent have successfully undertaken postgraduate study.⁴¹ The reality is even more discouraging in terms of judges. The Constitution reveals that: “the conditions and qualifications to be fulfilled by a judge will be determined by law, in accordance with religious criteria.”⁴² The law on the selection of judges, adopted in 1983, stipulates that judges must be Muslim men, of legitimate birth, Iranian citizens, loyal to the Islamic Republic of Iran, Mujtahid (an Islamic legal scholar) or holding a law degree or Islamic law degree; they also must have a certificate confirming they have no criminal convictions, a good reputation of being fair and noble, and be between twenty-three and thirty-nine years old. The prospective candidates are expected to pass an entry exam that is held annually by the judiciary. The successful candidates are required to complete their basic judge’s training, which takes 15, 18, or 24 months depending on the post they are applying for. In 2009, for instance, 358 candidates – among them seventy-three women – took part in the judge training courses, but only 117 candidates could complete the training phase successfully and join the justice system.⁴³ In practice, the judges are often thought to be incompetent and inexperienced, especially in the courts of the first instance.⁴⁴

The judicial reform programs in Iran, as elsewhere, have traditionally focused on training personnel to improve the performance of justice institutions, particularly with regard to dealing with case management and delay. These personnel training programs, in spite of having been extended during the last few years, are still, inadequate. In 2008, 29,000 personnel have participated in at least one of the training programs provided by the judiciary. This figure represents almost a 53.8 percent increase in the number of personnel compared to 1999, when only 3,351 justice-related personnel were reported to have taken part in any related training programs.⁴⁵

Also judicial personnel are required to participate in a related skill development program. Although some major advances have been made, the actual capacity of the trend toward skill development seems to be inadequate. In a very optimistic report by the Minister of Justice, nearly 6,000 judicial and 20,000 nonjudicial personnel have had the benefit of a maximum of 53.8 hours training per year. Yet, according to a group of young judges of the court of the first instance, the figure sounds rather rhetorical. In an interview, they confirmed the figure given above would only be somewhat true if the total included hours during which personnel take part in group prayers, religious ceremonies, and political speeches, along with actual hours spent at training workshops. From the critics’ perspective, one major gap is the lack of credible data regarding the efficiency of these programs in any specific data relating to the impact of personnel training on court performance. Although the benefits of personnel training in providing greater access to justice are comprehensible, the outcomes of these programs in practice are unclear and unpromising.

Corruption

Access to justice seems to be a costly process for people in Iran, taking into account not only the legal fees they need to pay but also the unofficial payments. The obvious paradigm is that a corrupt judiciary can increase the cost of justice in many ways (Transparency International, 2007). In particular, vulnerable groups such as the poor, minorities, people with a poor educational background or less well connected are more likely to be encouraged to pay unofficial payments.

Although corruption within the Iranian judiciary has been subject to the strongest disapproval from the authorities of the Supreme Leader,⁴⁶ it still remains one of the main challenges for the justice system. It appears that the government’s anti-corruption efforts have not been enough to tackle widespread corruption, and many consider the situation to be getting worse by the day. In fact, consistent with Transparency International, which publishes the annual Corruption Perception Index, Iran fell from 78th in 2003 to 146th in 2010.⁴⁷

Similar to many other legal concepts, prohibition of the notion of bribery has its roots in Islamic law. The Farsi word for bribe is rashwah, which also has an Arabic root. This term refers to an unofficial payment to an administrator in order to influence the conduct of the recipient (Jafari-Langroudi, Reference Jafari-Langroudi1997: 335). It also means an act implying money or gift giving that achieves a goal through conspiracy.⁴⁸ The prohibition of bribery in Islam is based on the primary and secondary resources. The Quran says: “And do not swallow up your property among yourselves by wrongful means; neither seek to gain access thereby to the authorities, so that you may swallow up a portion of the property of men wrongfully while you know.”⁴⁹ Allamah Tabatabei has cited a Hadith in Tafisr Al-Mizan confirming that the verse prohibits bribing the judicial authorities.⁵⁰ The Quranic hostility to bribery was reinforced by the Islamic tradition. In the Shia school of thought, corruption has also received strong condemnation through narratives originating from the words and deeds of the Prophet and Imams.

The primary point about all related narratives is that there is no distinction between who pays and who receives; indeed, all types of bribery are forbidden by the explicit texts. “Beware of bribe! It is nothing but disbelief. The one who is involved in bribe will not even smell the fragrance of Paradise” (Safinat’ul-Bihār). Elsewhere, the Prophet (S) says, “Allah cursed the briber, the bribe-taker and the mediator (meaning the one who walks between the two) in judgment. Avoid bribery as it is disbelief (kufr) and the bribe-taker is far from the mercy of God.”⁵¹ The same position, in confirming that bribery is negation of faith, has been taken by Imams. This position attempts to emphasise that there is no distinction between bribery to seek a right or to establish something void, impose injustice, or achieve a benefit: all of these are forbidden. Imam Ali, the first Shia Imam, states that “taking bribes (money or gift) by official authorities is forbidden (haram) and bribing the judges is disbelief (Kufr) in God.”⁵² The corruption in judicial proceeding amounts to disbelief in Allah.⁵³ Also based on fatwa, non-official payment to public servants is forbidden (haram).⁵⁴

Despite the prohibition of corruption under Sharia and national law, justice systems are often warped by corruption. “We do not deny the existence of corruption”: Judiciary Chief Ayatollah Sadeq Amoli Larijani made this remark in response to an MP, who said that all judges receive bribes.⁵⁵ He also added, “but it is not fair to say all judges are corrupt.”⁵⁶ Although there are examples of initiatives that were designed to tackle corruption, these legislations and governmental policies did not appear to have any major impact to prevent and contain judicial corruption. Note, for example, the law for Severe Punishment for Perpetrators of Embezzlement, Corruption and Fraud adopted in 1988 by the Expediency Discernment Council.⁵⁷ This bill includes a definition of administrative corruption and its punishment. However, the judiciary does not even reveal how many anticorruption cases have been ground-breaking with successful results. Another example is the United Nations Convention against Corruption (UNCAC)⁵⁸ that was been ratified by the Islamic Republic of Iran in April 2009, but there has been no published data regarding the impact of this international legal instrument on combating corruption.⁵⁹

In addition, the Supreme Court for Disciplinary Control of Judges is used primarily for any complaint charging a judge with: (1) violation of the rules of professional conduct such as judges’ duties to each other; (2) violation of the Code of Judicial Conduct such as disposing all judicial matters promptly, efficiently and fairly; (3) conviction of a felony such as corruption, which is a criminal act; (4) misfeasance or malfeasance in office; and (5) persistent failure to perform judicial duties. Nevertheless, the court has been criticised for the lack of efficiency and transparency of its procedures concerning the discipline or removal of corrupt judges.⁶⁰ It appears that the lack of accountability within the Iranian justice system exists not only because there is no legal framework or the political will to combat corruption, but mainly because there is no appropriate case-tracking or monitoring within the court system (CCA, 2003).The main concern relating to corruption is the lack of public trust and confidence in the justice system, which, in turn, creates hesitation in people with regard to the legal process.

Before concluding this section, it is important to note that corruption in the judiciary is a complex issue and needs to be addressed by a variety of policies. Long delays, for example, cause corrupt practices and influence the public perception of corruption. In Iran, users of justice more often pay bribes to speed up the litigation process.⁶¹ The huge backlog of cases results in delayed justice; it is quite common for a case to be delayed for years. As a result, most users of justice have to pay unofficial payments, and when abuse occurs, corruption further twists the justice system. Another reason for bribing the judiciary is in order to secure a favourable result in a lower court despite the fact that the rate of corruption falls dramatically when it comes to the higher courts. It is clear that a dysfunctional justice system leads to corruption.

Inadequate Legal Assistance

The need for legal assistance, although not completely missing in Iranian legal provision, seems inadequately implemented to be assured in practice. The Constitution of 1979 Islamic Revolution guarantees that in all of the courts, both parties have the right to have a lawyer and anyone who cannot afford a lawyer will be provided with one.⁶² This constitutional provision is akin to many developed countries that declare the right to free legal representation not only for indigent criminal defendants but also for indigent civil litigants (see for instance Article 29 of the Constitution of Switzerland,⁶³ Article 18 of the Constitution of the Netherlands,⁶⁴ Article 24(3) of the Italian Constitution).⁶⁵

In this context, legal assistance is a positive obligation of the Islamic state to ensure access to justice for those without adequate means. This positive approach symbolises a parallel between the Iranian Islamic state and other welfare states such as the United States in the area of access to justice.⁶⁶ In Iran, legal assistance for criminal cases has been subjected to more detailed legislative protection. The Code of Criminal Procedure mandates that in all criminal cases, each party has the right to a lawyer,⁶⁷ that anyone accused of a crime can request a lawyer from the court, and that the government must provide the lawyer’s fees.⁶⁸ Despite these protective constitutional and legal obligations, many defendants’ right to counsel has been denied in practice in Iran. Many defendants are excluded from access to a legal counsel during the investigation procedure while in detention. This is mainly because, under a note to Article 128 of the Code of Criminal Procedures, defendants’ access to lawyers in sensitive cases can be barred by the judges. Restrictions to the right to counsel provided under the note to Article 128 of the Code of Criminal Procedures seems to contradict Article 3 of the Law on Respect for Legitimate Freedoms and Safeguarding Citizens’ rights, enacted in 2004. This law obliges the court and the prosecutor to fulfil the right to legal representation of the defendants by providing the opportunity to be represented by a lawyer during all stages of the trial. However, it has been claimed that prosecutors and courts have closed their eyes to this new legislation in order to deny the defendant’s right to counsel under Article 128.⁶⁹ Thus, many lawyers have access to their clients’ files just a few days before a trial hearing once the investigation process has been completed (see Amnesty International, 2010; Human Rights Watch, 2010).

It is also important to note that the right to counsel is more restricted in the practice of so-called special courts (e.g., the revolutionary court). The UN Working Group on Arbitrary Detention report of 2003 concluded that

The problem is compounded by the lack of an adequate system. Free legal assistance in criminal cases takes two major forms under the Iranian legal system: mandatory defence and assigned counsel. It is noteworthy that there is no public defence service that is funded by the government of the Islamic Republic of Iran. Under this scheme, which has been widely adopted around the world, legal representation for those who are in need is provided by a governmental organisation staffed by full-time lawyers. The main benefit of the public defence schemes is that they “will not distribute resources on the basis of private economic criteria (the need for profit) and, as a result, they may be more responsive to other goals. Nevertheless, public models of provision are also prone to subjective and implicit resource allocation and may be more susceptible to budgetary restraint and political control” (Moorhead, Reference Moorhead1998: 380). There is also the question of cost effectiveness of a public defender service as an alternative to other legal assistance schemes. An evaluation of the public defender’s pilot in England and Wales (Bridges and Paterson, Reference Bridges and Paterson2007) revealed that cases handled by public defenders usually demonstrate higher costs than comparable cases handled via private practitioners.

The main structure of legal assistance in criminal cases under Iranian jurisdiction is based on an ex officio or assigned counsel system. The ex officio system is perhaps the oldest system to be used at some level to build up the legal aid system in quite a considerable number of countries, including, for example, the United States, Australia, South Africa, and Poland. In Iran, the traditional ex officio system is applied when the court assigns a counsel who needs to be a member of the Bar. Article 1 of the 1976 Law of the Establishment of the Financial Security of Attorneys states that ex officio appointed lawyers are assigned in criminal cases by the court. The Bar Association or the Centre for Legal Advisors, Lawyers and Legal Specialists of the Judiciary must introduce a qualified lawyer to the court. The term used to describe ex officio is vekalat taskhiri, an Arabic term meaning an assigned free counsel. The court, the Bar, and the Centre for Legal Advisors, Lawyers and Legal Specialists of the Judiciary are the main legal bodies to appoint ex officio counsel for defendants who cannot afford a legal representative. Attorney’s fees in cases of mandatory defence in which ex officio counsel is appointed are paid by a special judiciary budget.

The mandatory defence is an obligatory order for the validity of the criminal proceedings in specific cases. Criminal trials cannot proceed in the absence of a defence counsel when the accused is charged with an offence punishable by the death penalty, retribution, life imprisonment, or stoning to death. Article 168(1) of the Code of Criminal Procedure provides that in such cases, if no defence counsel has been appointed by the accused, the court should assign a defence counsel ex officio.⁷¹ In most cases, judges determine ex officio fees in line with the Iranian Bar Association criteria, to be paid in favour of the state’s finance at the end of the trial.

The mandatory defence provision, however, does not take into account the financial status of the defendant as an indicator; in practice, those who can afford a private practitioner are more likely to have their own counsels and only indigent defendants have the benefit of the ex officio provision. This is perhaps because of the impact of popular legal culture on the public’s perceptions of assigned counsel. No studies have been carried out on either a small or large scale to examine public perception of assigned counsel.

However, national media reports show that popular legal culture perceives that the assigned counsels’ performance is not as good as it should be when compared with private counsels. “People think assigned counsels would not be concerned as much as necessary for their clients because they haven’t been paid an adequate amount of money for the service.” These are the words of the judiciary’s chief legal advisor in an interview with a national daily newspaper.⁷² Another commentator confirms that lack of public trust in assigned counsel performance might be the result of actual cases. This criminal practitioner claims that popular legal culture considers mandatory defence more as “a legal decor” than adequate criminal legal assistance for the defendant. This perception results largely from the performance of courts and lawyers: when a court-appointed lawyer was employed, an adequately prepared defence was not presented.⁷³ Based on the qualitative interviews, I also believe Iranian popular cultural representations of assigned counsels have played an important part in explaining why defendants prefer to hire their own legal representatives even in mandatory defence, although the actual scope is subject to further scrutiny.

The main criticism here is the lack of control with regard to the qualifications of the assigned counsel and the quality of service. The traditional version of the ex officio system seems to have been refined in many countries whereby attorneys meet certain minimum qualification criteria, such as having related experience. Although one of the principles for the provision of legal aid under the Law on the Establishment of the Financial Security of Lawyers is that “there should be no difference between the quality of service provided as legal aid and the quality of service provided as legal assistance to a paying client,” it appears that this principle is not put into practice.

The defendant has a right to reject legal representation only in cases involving sexual offences or cases against approved ethics.⁷⁴ In most cases, if the defendant has been granted an ex officio legal representative in the court of the first instance, the same counsel represents the defendant until the final judgement is delivered. Iranian criminal jurisdiction does not recognise any other criteria for determining whether legal representation is mandatory other than the scope of the possible punishment. The defendant’s mental condition, for example, does not establish the right to mandatory defence. The Office of Legal Council and Legislative Affairs of the Judiciary provides that where a murder defendant absconds during the trial process but an ex officio counsel is present to answer the charges, the trial is not in absentia.⁷⁵

Nevertheless, mandatory defence under Iranian criminal jurisdiction is problematic on several counts. This system is restricted to a few categories of cases; those that are left out are often those where the defendants are at risk of long years of deprivation of liberty. Moreover, mandatory defence is permitted only when the investigation has been completed and so, during the pretrial phase, any investigative procedures take place in the absence of a defence counsel. Last but not least is the lack of a clear system of regulations regarding those who can be appointed as assigned counsel. Almost any lawyer can be appointed regardless of their field of practice and specialisation.

Under the assigned counsel system or what is referred to as assistance counsel (Persian: Vakil Mozedati) in Iranian legal terminology, indigent criminal defendants whose offences do not fall within the remit of mandatory defence can apply for free legal assistance. The adoption of a “means” test is based on the Quranic doctrine of Esar, as noted earlier in the explanation of cost barriers. Therefore, under the Iranian Code of Criminal Procedure, the defendant must provide evidence of the lack of sufficient means on the basis of income or not having access to financial resources during the trial. Once the defendant has proved Esar, the court must appoint an ex officio counsel. The main evidence that should be submitted involves providing at least four witnesses who can testify to the lack of financial means of the defendant.⁷⁶

However, the provision remains inadequate since the law provides no further explanation as to the minimum or maximum level of income that should be established and proved. The lack of consistent standards of the “means test” can cause conflicting decisions by courts in similar situations. In most cases, judges may pass judgements based on their knowledge of one of the veritable means of proof that the law requires in the Shia school of thought. In some cases, judges also require further local investigation from within their neighbourhood to prove financial difficulty of the defendant. Under Iranian jurisdiction, it is not the eligibility tests that result in the instances of potential free legal assistance being low but the punishment for false claims. Under Article 30 of the law of Esar, in filing a false claim, applicants may face one to six months’ imprisonment. The main problem with the assigned counsel scheme is that there are no clear systems obliging the authorities to inform the defendant of the right to free legal counsel. It seems that the majority of criminal defendants fall into the self-representation category. The private criminal law practitioners appear expensive and unaffordable for many defendants who are mainly from the poorer sections of the population.

One of the related concerns here surrounds the lack of a culture of counsel; most criminal defendants do not request legal assistance. The UN Working Group on Arbitrary Detention, reporting on its visit to Iran in February 2003, noted: “the absence of a culture of counsel, which seriously undermines due process. The Group notes that many ordinary law prisoners have no understanding of the role of counsel and do not request the assistance of State appointed counsel. The latter are in any event few in numbers and largely unmotivated owing to the low pay.”⁷⁷

Legal assistance in civil litigation fares no better. As previously mentioned, even though the Iranian Constitution provides for a right to legal assistance in both criminal and civil cases,⁷⁸ there being clear legislative protection to guarantee obligatory legal representation in civil litigation, the legal aid system, in civil cases, seems to be inadequate and insufficient in providing free legal services for indigent civil litigation. The main legislative protection for legal assistance in civil litigation has placed the emphasis on the legal profession. Article 23 of the 1954 law on the Bar provides that lawyers must represent at least three civil cases per year on a pro bono basis. The law, however, does not provide a clear and sufficient procedure regarding the right to free legal assistance. Also Article 21(2) of the implementing bylaw to Article 187 of the Law of Third Economic, Social and Cultural Development Plan (adopted in May 2000), guarantees that judicial legal advisors must provide free legal representation for three civil cases per year.

Critics raise more pragmatic objections to Article 187’s legal advisors, mainly regarding the independence of the legal profession in Iran. Under Article 187, the judiciary “shall be authorised to confirm the competence of the law’s graduates who shall be granted licences for the establishment of legal advisory institutes.” Therefore, Article 187 authorises the judiciary to introduce a new generation of lawyers beyond the Bar’s power to provide free legal assistance in civil litigation. The legal advisors’ institute operates under the supervision of the judiciary, having a totally different examination and traineeship process from the Bar. So Bar Association lawyers and the judiciary’s legal advisors are permitted to present all types of cases in court under the Iranian legal system. Estimates by the Minster of Justice show that, from 2001 to 2009, approximately 32,000 legal advisors under Article 187 have been admitted to practice.⁷⁹

Legal profession institutions such as the Iranian Bar Association remain “extremely concerned about Article 187 legal advisors and believe they constitute a serious threat to their own independence” (International Bar Association, 2007: 10) and the International Bar Association observes that “the power of the judiciary to grant and repeal licences is likely to result in Article 187 legal advisors being strongly influenced by the judiciary. The relationship may also affect judicial independence and impartiality” (ibid.).

Therefore, low-income civil litigants who are unable to secure legal representation on their own may fall under the scheme of Esar and request an assigned counsel (Persian: Vakil Mozedati). In theory, civil indigent litigants are required to file an Esar case before the court, requesting free legal assistance that is subject to “means” tests. Successful litigants may refer to the Bar or to the Centre for Legal Advisors, Lawyers and Legal Specialists of the Judiciary to appoint a lawyer who will represent them on a pro bono basis. In practice, indigent litigants who, in most cases, are not familiar with the law and the judicial process must file the Esar request with the assistance of a legal advisor. Moreover, the provision of legal assistance for civil indigent litigants is widely underused, as there are no adequate specified procedures for appointing a lawyer. The right to be granted free legal representation applies only after litigation has commenced, and it is only at this point that a litigant or respondent may file a legal aid application with the court.

A major improvement facilitating free legal assistance in civil litigation was a bylaw, passed on 25 April 2005, requiring the parties to have an attorney in civil proceedings. As mentioned previously, the litigants of the new case entering the civil registry must introduce their lawyers. Moreover, the document must be filed by an attorney to be registered as a civil case. To enable the poor and other vulnerable groups to have free legal assistance, the Ministry of Justice provided legal aid clinics in all of the public courts, while the Bar Association also had to introduce free legal assistance to those who were referred to by the court as Mosar or an applicant for exemption based on Isar, as explained earlier.

Compulsory legal representation in civil litigation came to an end through the Supreme Court in its judgement No. 714, dated 2 March 2009. In order to arrive at this conclusion, the Court conducted a review of the constitutional provisions. The judgement in particular refers to Article 34 of the constitution, which states that “it is the indisputable right of every citizen to seek justice by recourse to competent courts. All citizens have right of access to such courts, and no one can be barred from courts to which he has a legal right of recourse.” The judgement provides that “the mandatory legal representation in civil litigation functioned as barrier to justice for Iranians.”

Conclusion

This chapter began by classifying the various categories of barriers to access to justice in Iran. It explored some of the common issues in order to give breadth and depth to the study of the different dimensions that incorporate the criteria, which create circumstances in which barriers to access to justice might be experienced. The analysis in this chapter shows that many of the barriers are applicable to all disadvantaged groups in different communities; however, some of the barriers from the Iranian user perspective include the cost of justice, lengthy delays, the insufficient numbers of judges and skilled staff, corruption, restrictive legal aid eligibility guidelines, and also limitations in terms of pro bono legal service provision.

The chapter also exposes the limits of legal assistance as an effective mechanism for providing wider access to justice. It highlights the fact that despite the existence of constitutional and legislative provisions, the reality on the ground appears to reflect that many Iranians who are facing significant legal problems do not have access to affordable legal assistance. Many individuals of limited means, who are unable to afford legal advice, are forced to confront their legal problems without legal assistance. This analysis has helped enrich our understanding of access to justice in Iran, with particular reference to the barriers to access to justice and also to see if any law and policy have been adopted to facilitate overcoming these barriers. Even though there are examples of legislation or policies that were designed to tackle barriers, these initiatives did not appear to have any significant impact in overcoming any obstacles. The lack of research exploring the nature and incidence of such barriers and also the lack of understanding, between related law and policy bodies such as the Ministry of Justice, of ways and mechanisms to provide better access to justice, seemed to reflect a lack of law and policy focus.