دادرسی فراقانونی: بررسی انتقادی مبانی استجازۀ قضایی در پرتو قانون اساسی

Abstract
Legality and justice are two fundamental indicators of "fair trial". Legality requires that criminal law institutions follow legal rules and justice means applying a fair judicial process for conviction and punishment. There are many challenges, which is one of them, resorting to the method of Estizan to circumvent the existing laws. A review of the judicial management of the heads of the Judiciary shows that instead of resorting to legal channels to solve the challenge, they have chosen the shortest path with the permission of the leadership. While the laws have shown the legal ways to eliminate the loopholes. In this article, the cases of Estizan and their basics are first examined. The finding of the article is that despite the existence of legal mechanisms to meet the legislative needs, it does not justify the legitimate reason for asking Estizan, and it is not possible to refer to Article 110 of the Constitution under the title of "Mozal’e Nezam" due to the lack of its conditions. Therefore, Estizan is an extra-legal method that contradicts the laws and it weakens the position of the parliament and also questions the legality of the judicial system.

Introduction

Criminal law is subject to the law in all its stages, including criminalization, sentencing, proceedings and execution of criminal sentences. The legality of criminal law is the guarantor of the rights and freedoms of individuals, and its judiciary requires that any charges, proceedings, issuance of criminal sentences and their execution be pursued only through competent judicial authority. This important matter, which under the title of legal and judicial principle of criminal law, includes substantive and formal criminal law, is clearly stated in several principles of the Constitution law including Principal 36, 37, 159, 169 and Article 2 and 12 of the Islamic Penal Code and Articles 2 and 4 of the Criminal Procedure Law. Compliance with the law in all stages of criminal proceedings is one of the first indicators of fair proceedings.
Despite what has been said, sometimes, instead of following the legal path to solve the problems and meet the legal needs of the judicial system, the high judicial authorities have seen the solution in obtaining special powers from the leadership. There are many examples of estijazeh, or to be more precise, judicial permission in the history of the judiciary.
Regardless of the subject of each of judicial permissions, resorting to this method of solving the problem can be considered as a result of confusion, populism and lack of faith in legal processes at the head of the judiciary. In addition, getting closer to the top of the power pyramid and getting ahead in proving dependence and loyalty are among the motivations that make legal processes lose their color in front of extra-legal methods such as estizan.
In the first part of this article, we discuss the cases of judicial permissions in the last four decades. Then, in the second part, we will discuss the legal analysis of the judicial permission in the light of legal principles.
 

Methodology

This research has been done by descriptive-analytical method and studying the laws and regulations of legal system in the form of documents and libraries.
3.Results and Discussion
In the past four decades, sometimes the heads of the judiciary have resorted to the use of leadership powers to resolve judicial problems based on necessity and expediency. Sometimes eliminating the void of the lack of law and sometimes overcoming the obstacles related to the existence of a law has been the reason for judicial permission, which ironically, all cases of judicial permission are related to the realm of criminal law.
Failure to submit appropriate bills to the legislature and resorting to the method of judicial permission and benefiting from the unique position of the first person in the country may be considered a simple and fast method, but there is much room for reflection in its legality and usefulness. From the point of view of legality, according to Principal 158 of the Constitution, the only way to meet the legal requirements of the judiciary is to "submit appropriate bills" to the parliament. Therefore, neither in the constitution nor in the normal laws, there is no other way, including permission from the leadership. The only possible legal justification for permission from the leadership is paragraph 8 of Article 110 of the Constitution. It is deduced from Article 27 of the Internal Regulations of the Majma’e Tashkhise Maslahate Nezam, that the head of the Judiciary, like the minister or the head of any government or public institution, can refer to the leadership to solve the problem identified by him. However, the requirement for adopting this method is to meet the three conditions of the existence of the Mozal, its intractability through normal methods, and its solution through the Majma’e Tashkhise Maslahate Nezam.
In terms of the condition of the existence of the Mozal, it is clear that in some cases, the Mozal is basically related to the failure of the current head of the judiciary to submit the bill to the parliament on time. In other cases, for example, in dealing with the enemy's economic war through quick and decisive dealings with economic disruptors and corruptors, it has been used as a justification for forming special courts. And deep thinking about various causes and factors of delaying proceedings and extensive economic and organizational corruption, seeks to solve the Mozal in quick and harsh proceedings at the cost of violating the principles and standards of fair proceedings.
Regarding the other condition of resorting to the mechanism of paragraph 8 of Principal 110 of the constitution law, i.e. the Mozal cannot be solved by normal means, it should be said that in all the requests made, the normal way to solve the problem is to present a bill to the parliament for approval or amendment of the necessary laws. But the heads of the judiciary, instead of thinking about solving the issue through normal means, have gone directly to the leader for Estizan.
Finally, in cases of Estizan, the leadership did not refer the matter to the Majma’e Tashkhise Maslahat and he agreed to the Estizan by trusting the heads of the judiciary appointed by them. Of course, the leadership's emphasis on observing the speed, justice and thoroughness of the rulings of the special courts to deal with the crimes of economic disruptors and corruptors speaks of his worries and concerns regarding judicial issues.
 
4.Conclusions
According to what has been mentioned, it can be said that if the only possible justification for Estizan is Article 110 Article 8 of the Constitution, then at least the conditions stipulated in that Article have been neglected. Undoubtedly, resorting to such special and exceptional methods is spending from the leadership position to pass the legal requirements, and it is hoped that the judiciary will stand up to its duties instead of resorting to such methods from existing legal channels. And the leadership should also guide all the ruling powers and institutions in this direction and prohibit them from resorting to ways of circumventing the law, whose corruption and ill effects are not hidden from the scholars.

Selection of References

Aghajani,M ; Mir Khalili,M ; Haji Dehabadi,A(1400) , “Pathology of Iran's criminal policy in the light of the sacrificial ram theory”, Contemporary legal studies,No:23. [In Persian]
Moghaddasi,M;Farajiha,M(1392), “Characteristics of Populist Criminal policies, A comparative study”, Comparative law Studies,No:2. [In Persian]
Izadifard,A(1383), “Velayat al-Faqih and the Constitution”, Political Science Quarterly,No:25. [In Persian]