En application de l'article 173 de la constitution iranienne les Majlis ont adopté le 30 Mai 2006 une loi créant un tribunal administratif de l'Iran.
Pars associates présente ce texte de loi en anglais ci-dessous:
THE LAW OF ADMINISTRATIVE JUSTICE TRIBUNAL (Ombudsman)
Official Gazette No. 18043 published on February 2, 2007
Letter No. 112/167581 dated January 20, 2007
To His Excellency, Dr. Mahmood Ahmadi'nejad, the Honourable President of the Islamic Republic of Iran
By reference to Letter No.26613/22660 dated July 20, 2005, and pursuant to Article 123 of the Constitution of the IRI, please find attached hereto the Law of Administrative Justice Tribunal that was ratified in the course of open session of the Islamic Consultative Assembly dated May 30, 2006.
The draft law was dispatched to the Expediency Council and approved with certain amendments.
Implementation and enforcement of the above law was found, by the Expediency Council, in conformity with expediency of the Islamic state.
Gholam'Ali Haddad Aadel, Speaker – Islamic Consultative Assembly
The Law of Administrative Justice Tribunal
Chapter I – Organization
Article 1- In implementation of Article 173 of the Constitution of Islamic Republic of Iran and in order to investigate the complaints,, grievances and objections of people against government agents and employees, government departments and administrative directives and regulations that will be approved or enforced in contradiction with provisions of a law, or the Rules of Holy Sharia or beyond and the powers of the authority who approved such regulations, the Administrative Justice Tribunal shall be set up under the supervision of the Head of Judiciary.
Article 2- The Administrative Justice Tribunal (hereinafter referred to as the "Tribunal") shall be established in Tehran. The number of benches of the tribunal shall be proposed by the Chief Judge of the Tribunal to the Head of the Judiciary for approval.
Article 3- Judges of the tribunal shall have a minimum record of 15 years of practice in judicial positions. As regards judges with a degree of master of science or doctorate in any one of the fields of law or with similar degrees, in rank, taken from seminaries, ten years of record of practice in judicial positions, shall be sufficient.
Note- Judges currently engaged in practice, at the Tribunal, as well as the judges having a record of practice for a minimum of five (5) years, at the tribunal, shall be exempt from the requirements under this present Article.
Article 4- The chief judge of the tribunal who shall be appointed by order issued by the Head of Judiciary, shall also serve as the chief judge of Bench 1 of the Tribunal and shall have the required number of assistants and consultants.
Judges of the tribunal shall be appointed, upon proposal by chief judge of the tribunal and pursuant to orders to be issued by the Head of Judiciary.
Article 5- Judicial and administrative organization of the tribunal shall be proposed by the chief judge of the tribunal, for approval by the Head of Judiciary.
Article 6- The budget of the tribunal shall be provided under an independent heading together with the budget of the Judiciary.
Article 7- Each bench of the Tribunal shall have a judge and two counsellors. Verdicts shall be issued with a majority of votes.
Verdicts (judgements) given by benches of the tribunal shall be final.
Article 8- If the judge of a bench shall be on leave or absent for a period exceeding two consecutive weeks, one of the alternate judges, upon notice given to him by the chief judge of the tribunal shall act as substitute judge.
Also, if the judge of Bench 1 shall not be present in the process of casting votes, upon notice by the judge of Bench 1, an alternate judge shall take part in the proceedings and issuing the verdict.
Article 9- A number of experts in the fields required by the tribunal, who shall have a record of ten (10) years of administrative work, and who shall have BA or higher degrees, shall be appointed to serve as consultants to the tribunal.
If consultation and expert advice shall be required, the investigating bench shall refer the case to consultants or experts. Verdict shall be issued after review of the opinion given, in respect of the case, by experts or consultants.
Note 1- Consultants being the subject of this Article, in addition to the qualification regarding their academic background and experience described above, shall also be qualified in accordance with the requirements under Sub-clauses (1) to (4) of the Sole Article on Appointment of Judges, approved on May 5, 1982.
Note 2- The above consultants, after their qualifications shall be accepted, shall be employed permanently as civil servants or under term contracts pursuant to orders to be issued by the Head of the Judiciary. Their salaries and benefits shall be at the same level of the salaries and benefits of alternate judges of the tribunal.
Article 10- In cases where according to the following articles of this law, appeal may be sought of the judgements issued by various benches of the tribunal, the appellate benches shall comprise a judge or an alternate judge and four (4) counsellors. Verdicts (judgements) in appeal shall be issued with the agreement of at least three (3) members.
Appellate benches, in addition to the above power, shall have jurisdiction to examine and investigate other cases, as well.
Article 11- The General Council of the Tribunal may hold sessions in order to fulfil the duties and authorities set forth in this law, with the presence of at least two thirds (2/3rd) of the judges of the tribunal. The meetings shall be presided by the Chief Judge of the Tribunal or his deputy in judicial affairs. Verdicts of the general Council shall be issued with a majority of the votes of the judges present in the session.
Note- The consultants mentioned in Article 9 above may participate in the sessions of the General Council, upon call by the Chief Judge of the tribunal and to express opinion, if required, without having the right to vote.
Article 12- In order to enforce and execute the verdicts issued by various benches of the tribunal, a department of execution of judgements shall be formed under the supervision of the chief judge of the tribunal or one of his assistants with a number of alternate judges to carry out the task of execution of the said verdicts.
Chapter II- Jurisdiction and Scope of Powers of the Tribunal
Article 13- The jurisdiction and scope of powers and authorities of the tribunal shall be as follows:
1. To follow up the complaints, grievances and objections raised by individuals or legal entities against:
a. Any decisions and acts of government units including the ministries, government organizations, institutes and companies, municipalities, revolutionary organizations and institutions and their instrumentalities.
b. Any decisions and acts of the officers of the units enumerated in Clause "a" above regarding any matters related to duties of such officers.
2. To follow up the objections and complaints made against final judgements and decisions of administrative tribunals, inspection councils and certain legal bodies such as tax assessment committees, labour councils, the boards of settlement of disputes between employers and employees, the committee formed under Article 100 of Municipalities Law, and the committee formed under Article 56 of the Law on Preservation of Forests and Natural Resources. Such objections and complaints shall be examined in order to solely verify any contingent violations of laws and regulations by such judgements and decisions.
3. To follow up any complaints made by judges and officers under the Civil Services Law and other employees of the units and institutions described in Clause 1 above as well as any employees of civil or military institutions which may become subject to these regulations in case their names shall be expressly mentioned, in consideration of any injured employment rights.
Note 1- The Public Court shall determine the amount of any damages suffered by the entities and persons described in Clauses 1 and 2 above after confirmation by the tribunal.
Note 2- Decisions and judgements made by the courts of law and the tribunals of the Ministry of Justice, the military tribunals and Disciplinary Court of Judges of the Ministry of Justice and of the Army may not be brought before the Administrative Justice Tribunal.
Article 14- If the decisions and actions that are the subject of a complaint, shall damage and prejudice the rights of individuals, the investigating bench shall issue appropriate verdict for the cancellation and abrogation of such decisions and actions, or for binding the party against whom the complaint was lodged, to reinstate and restore the situation and to respect it and recognize the prejudiced rights of the complainant.
Note- After a verdict shall be issued on the basis of the above Article, the authorities against whom the complaint was lodged, shall be bound to comply with the provisions of the said verdict, in their subsequent decisions and actions.
Article 15- If the complainant, in his complaint or thereafter shall claim that the acts, enforcement of decisions or final judgements passed or refraining from carrying out duties, on the part of the authorities mentioned in Article 13 above, shall cause damages that will be impossible or extremely difficult to remedy and compensate, the bench investigating the complaint, in case of establishing the emergency nature of such claim, shall issue injunction to halt the acts, decisions, and verdicts or shall order that the government authorities continue fulfilment of their obligations and duties.
Note- Issuance of an injunction shall not have any effect on the main complaint. If the complaint shall be refused or in case a writ of cancellation of the main plait shall be issued, the injunction shall likewise become null and void.
Article 16- If, at least, one of the two judges, or two of the three judges who issued a verdict shall notice a mistake in the form and procedures or in the merits and essence of investigations that lead to the issuance of the verdict, they shall give a well documented opinion, in writing, in respect of such mistake and the case shall be referred to the office of the chief judge of the tribunal in order to be sent to a bench of the tribunal in charge of cognizance of cases.
Note- Verdicts issued for correction of writing or typing mistakes or mistakes in calculation or verdicts given to explain an ambiguous point, by a bench that issued the judgement, shall not be subject to the provisions of this Article.
Article 17- If a party to a dispute, after the issuance of a verdict, shall obtain new documents that can affect the verdict, such party may present the new document(s) to the bench that issued the verdict and request for re-commencement of the proceedings on the basis of the new document.
The bench shall review and examine such requests, out of turn.
Note- If a bench of the tribunal finds the request of the party to the claim acceptable and plausible, the bench shall order a halt in execution of the issued verdict.
Article 18- If the Head of Judiciary or the chief judge of the tribunal find a verdict issued by the tribunal in explicit contravention of the Rules of Holy Sharia or a law, the case shall be referred to a bench in charge of cognizance of cases. The said bench of cognizance, in case it finds the objection reasonable, it shall declare the issued verdict as null and void and shall proceed to issue an appropriate judgement.
Note- Judgements (verdicts) issued by virtue of the provisions of this Article, except in cases where such judgements shall be in explicit contravention of the Rules of Holy Sharia, may not be reinvestigated, any further.
Article 19- The Scope of powers and jurisdiction of the General Council of the tribunal shall be as follows:
1. To investigate the complaints, grievances and objections made by natural persons and legal entities in respect of the by-laws, directives and government regulations, and municipalities procedures on ground of inconsistency of the said regulations with provisions of a law and to provide redress and protect the rights of individuals in cases where the said wrongful acts or decisions, due to their inconsistency with the law or due to lack of competence on the part of an authority and misuse of power or infringement of law or refraining from carrying out statutory duties and functions, shall prejudice the rights of individuals.
2. To issue a conclusive judgement in cases where contradictory and different judgements have been issued by two or more benches of the tribunal in identical and similar cases.
3. To issue a conclusive judgement in cases where consistently similar judgements shall be issued (on the basis of an incorrect interpretation of a law), in respect of a particular issue, by various benches of the tribunal.
Note- Investigation of judicial decisions adopted by the Judiciary as well as the decrees and resolutions of the Guardians Council of the Constitution, Expediency Council, the Congregation (Majlis) of Experts, the High Council of National Security and the High Council of Cultural Revolution shall not be subject to the provisions of this Article.
Article 20- Judgements issued by the General Council shall enter into force and vigour as of the date of issue, except the instances of inconsistency of the repealed decrees and directives with the Rules of Holy Sharia or for the purpose of protection of the rights of individuals. In such cases, General Council may declare that the issued judgement shall be effective as of the date of approval of the decree that has been abrogated by the judgement of the General Council.
Chapter III – Procedures for Investigation and Examination of Cases by the Tribunal
Article 21- Examination of a case by the tribunal shall require submission of a plaint, written in Persian language, on special printed forms. The plaint and certified copies of all documents and evidences attached to it shall be submitted in the number of defendant together with one additional copy.
Note 1- No plaint shall be required for cases that will be dispatched to the tribunal by another judicial forum under a writ of lack of competence and jurisdiction of that forum.
Note 2- Court expenses for review and examination of a case, at the benches of the tribunal, shall be fifty thousand (50,000) rials and one hundred thousand (100,000) rials for investigation by the bench taking cognizance of cases.
Note 3- If a plaint submitted to the tribunal shall be without signature or devoid of any one of the particulars provided by the Law of Procedures of Public and Revolutionary Courts (in civil matters), the manager of the office of the bench concerned, shall act according to the provisions of the said law.
Article 22- Plaints shall be referred to one of the benches of the tribunal by the chief judge of the tribunal. The office of the bench concerned shall serve a copy of the plaint and its attachments on the other party who shall be under the obligation to file a reply to the complaint within one month after the date of service of the plaint. Failure to file reply shall not stop investigation of the case by the bench concerned and to issue a judgement with due consideration of the documents in hand.
Article 23- Representation by attorneys at the tribunal shall be in accordance with the regulations of the Law of Procedures of Public and Revolutionary Courts (in civil matters).
Article 24- The investigating bench of the tribunal may conduct any investigation or take any action it deems required or it may instruct the agents of the Judiciary as well as administrative authorities to conduct such investigations or to delegate power to other judicial authorities to carry out the required investigations.
The said agents and authorities shall be bound to carry out the required acts and complete their investigations within the respite given by the tribunal. Infringement of the provisions of this Article shall be subject to administrative or disciplinary punishments, as the case may be.
Article 25- The authority to investigate a request for injunction mentioned in Article 15 of this Law, shall be the same bench of the tribunal that examines the original claim. However, in cases where request for injunction has been made in the plaint addressed to the General Council of the tribunal requesting the cancellation of decrees, the case shall be sent initially to one of the benches of the tribunal. Only in case injunction shall be given in the said bench, the case shall be investigated by the General Council, out of turn.
Article 26- The organizations, departments, boards and government agents against whom a complaint has been lodged, after an injunction shall be served on them, shall be under the obligation to act according to the stipulations of the injunction. In case of persistence and failure to comply, the bench of the tribunal that issued the injunction shall condemn the party in default to suspension from government service for a term of six months to one year and to compensating the damage that may have resulted from his failure.
Article 27- A bench of the tribunal issuing an injunction shall be bound to review the original claim, out of turn, and to issue an appropriate judgement.
Article 28- If a bench, that issued an injunction shall obtain proof and evidence that such injunction shall no longer be required, the bench shall cancel the injunction.
Article 29- Regulations pertaining to the entry of third parties into a lawsuit, joining a third party to the proceedings, objection by a third party to the on-going proceedings and taking evidence from witnesses at the Administrative Justice Tribunal, shall be according to the stipulations of the Law on Procedures of the Public and Revolutionary Courts (in Civil Matters).
Article 30- If the contents of a plaint filed with the tribunal shall contain certain issues regarding a third party, such issues may not hinder examination of the case by the investigating bench of the tribunal.
Article 31- A tribunal's bench may call any one of the parties to give explanations. If the call has been made of the departments and entities mentioned in Article 13 of this Law, the said party to the complaint shall be bound to introduce a representative.
Note 1- If the complainant shall not become present before the court after receiving call to provide explanations or shall refuse to provide the required explanations, the bench of the tribunal examining the plaint shall proceed with issuing judgement by review of the initial plaint and the plea filed by the other her party to the claim or by listening to the statements of the said party. If taking a decision on the merits of a case shall not be possible without explanations to be provided by the complainant, a writ of cancellation of the submitted plaint shall be issued by the examining bench of the tribunal.
Note 2- If the other party (opponent) to a claim shall be a natural person or a representative of a legal entity who shall not become present before the court despite a call made on him, the bench shall arrest him or shall otherwise condemn him to suspension from government service for a period of one month to one year.
Note 3- Failure on the part of the other party to a complaint (opponent) to designate a representative or failure on the part of a person in charge to become present at the bench of the tribunal within the respite fixed by the pertinent bench, shall result in suspension of the party in default, from engagement in government services, from two months to one year.
Article 32- In case of receiving a demand made by the chief judge of the tribunal or by any one of the benches of the tribunal, all government entities, municipalities and other bodies and their agents, shall be bound to dispatch, within one month after the date of receiving the above demands, the required documents and files. If dispatch of the documents and files shall not be possible, the said authorities shall inform the tribunal of the reasons why the documents and files can not be sent.
A party found to be in default, shall be condemned to suspension from government services from one month to one year or to the forfeiture of one third of his salary and benefits for a term of three months to one year, according to a judgement that will be passed, in this regard, by the pertinent bench of the tribunal.
Article 33- The instances where a judge shall be precluded to examine a particular case, in the tribunal, and procedures on the manner of service of summons, judgements and writs issued by the tribunal shall be those provided in the Law of Procedures of Public and Revolutionary Courts (in Civil Matters).
Article 34- All individuals and authorities mentioned in Article 13 of this Law shall be under the obligation to comply with the judgements of the tribunal after service of a judgement.
Article 35- In case of refusal to comply with a judgement, by the individual or the authority against whom a judgement was passed, the bench that issued the judgement shall notify the chief judge of the tribunal of the issue of refusal.
The said chief judge of tribunal or his assistant shall refer the issue to any one of the judges of the department of execution of judgements in order to enforce and execute the judgement.
Article 36- The judge in the Department of Execution of Judgements shall enforce a judgement by adopting the following measures:
1. Dispatch of summons to the officer in charge and obtaining a letter of undertaking from the said officer on compliance with the judgement or obtaining the consent of the person in whose favour the judgement was issued, within a specific respite.
2. Issuing order for blocking the bank account of the party against whom the judgement was issued and withdrawing funds from the said account in the amount of the judgement debt, in case the judgement has not been executed and enforced after one year from the date of service of the judgement.
3. Issuing order to forfeit and confiscate the properties of the party in default, at the request of the beneficiary in accordance with the regulations of the Law of Procedures of Public and Revolutionary Courts (in Civil Matters).
4. Issuing instruction for cancellation of the deeds or resolutions adopted contrary to the judgement issued by the tribunal.
Article 37- If the judgement debtor shall refuse to comply with the judgement issued by the relevant bench of the tribunal, he/she shall be condemned, according to the judgement of the same bench, to suspension from government services for up to five years and compensating the losses. Appeal may be sought from the said judgement within twenty days after the date of service of the judgement, from the bench in charge of cognizance of cases in the tribunal.
Article 38- In case of requests for cancellation of decrees, it shall be necessary to indicate the reasons for making such request and the details of contradictions between the contents of such decrees with the Rules of Holy Sharia or with a law and details of infringements or actions taken beyond the statutory powers of the person or authority against whom the complaint has been lodged by indicating the article of law or the religious decree contrary to which the decree in question was approved or action was taken.
Note- In case of failure to comply with the provisions of this Article, the Manager of office of the General Council of the Administrative Justice Tribunal shall notify the applicant, within five (5) days after filing request, of the deficiencies. If the applicant shall not remedy the defects within ten (10) days after service of the above notice, the Manager of office shall issue a writ of rejection of the application that shall be final.
Article 39- In cases where according to the opinion of the chief judge of the Tribunal no investigation and review shall be possible in respect of a request made for cancellation of a decree, such as the cases where the applicant concerned has already withdrawn his request or in cases where the tribunal has already issued a judgement regarding the decree in question, the chief judge of the tribunal shall issue a writ on refusal to hear the request. The said writ shall be final.
Article 40- If the Head of Judiciary or the chief judge of the tribunal shall become aware, in any manner, that a decree has been issued in contradiction with the Rules of Holy Sharia or with the provisions of a law or it has been issued beyond the powers of the authority who approved such decree, he shall raise the issue in a session of the General Council and shall require cancellation of such decree.
Article 41- If a decree shall be discussed on ground of its inconsistency and contradiction with the Rules of Sharia, the opinion of the Guardians Council shall be sought which opinion shall be binding on the General Council.
Article 42- The General Council, in implementation of the provisions of Sub-clause (1) of Article 19 of this Law, may repeal and abrogate the whole or a part of a decree.
Article 43- If contradictory judgements shall be issued by one or more benches of the tribunal, the chief judge of the tribunal shall, immediately after becoming aware of the above matter, raise the issue in the meeting of the General Council. After investigation and establishment of contradiction, the General Board shall issue appropriate judgement that shall be binding on all benches of the tribunal and other administrative authorities in similar instances. Such judgement shall have effect on future cases. Judgements of similar characteristics, issued in the past, shall remain valid. However, appeal may be sought by beneficiaries, within one month after the date of publication of the said conclusive judgement in the official gazette, from the benches in charge of cognizance of cases in respect of the judgements referred to the General Council and have been considered to be incorrect. The bench in charge of cognizance shall be bound to investigate the issue and to pronounce a judgement on the basis of the judgement given by the General Council.
Provisions hereof shall not apply to judgements that will be regarded to be against Sharia by the clergy jurisprudents of the Guardians Council.
Article 44- In cases where in respect of a single issue, a minimum of five similar judgements have been issued by various benches of the tribunal, the issue, at the opinion of the chief judge of the tribunal shall be raised in a session of General Council and a conclusive judgement shall be issued that will be binding on all benches of the tribunal, departments, natural persons and legal entities concerned.
Note- After issuing a conclusive judgement, investigation and examination of the complaints falling under the category of this Article by the benches of the tribunal shall be made, out of turn, without the need to exchange plea.
Article 45- If, after publication of a judgement through Official Gazette, the authorities in charge refuse compliance with the provisions of the judgement, they shall be condemned, upon demand by a beneficiary or the chief judge of the tribunal and after issuance of a judgement by one of the benches of the tribunal, to suspension from their positions for a term of three months to one year or to payment of cash penalty from one million (1,000,000) to fifty million (50,000,000) rials and to compensating the losses and damages resulting from their refusal.
Article 46- In case of disputes between the benches of the tribunal and other judicial forums, in respect of competence and jurisdiction, opinion in this respect shall be given by the consultants of the Administrative Justice Tribunal, and a final opinion shall be given by the Supreme Court.
Article 47- After the date of coming into force of this Law, investigation of all cases referred to the appellate benches previously operating under the provisions of the old law of the Administrative Court shall continue in the said benches. Also, appeal may be sought from the judgements issued by previous first instance benches of the Administrative Court in compliance with the pertinent law, approved 1981. Appeal may be sought, only in respect of those judgements that were not considered as final, when issued by first instance benches, according to requests field with the old appellate benches of the Administrative Court.
Article 48- The Judiciary shall be under the obligation to draw up the draft bill of the procedures of the tribunal and to submit same, through the government, within six months, to the Islamic Consultative Assembly for approval.
Until the date of approval of the above law of procedures, actions will be taken on the basis of this present Law as well as the laws of the past.
Article 49- As of the date of coming into force of this Law, the Law of Administrative High Court, approved 1360 (1981), together with its subsequent amendments, as well as all the laws repugnant to the provisions of Articles 47 and 48 of this Law stand null and void.
The above law, comprising 49 Articles and 20 Notes was approved in the open session of Islamic Consultative Assembly held on May 30, 2006 and was endorsed by the Expediency Council after changing its Articles 13 and 19-1 on December 16, 2006.
Gh. Haddad Aadel, Speaker – Islamic Consultative Assembly