The Journal of Critical Analysis of Judicial Decisions

The Journal of Critical Analysis of Judicial Decisions

Transition from formal to substantive review in cases of objection to the decision of the Judiciary Selection Boards: Critique and analysis of the decision of Branch 29 of the Court of Appeals of Administrative Justice

Document Type : A critique of a judgment of the Administrative Court of Justice

Author
PhD graduate in public law and researcher
Abstract
In accordance with the principles governing the jurisdiction of the Administrative Court of Justice, including the previous regulations and the amended law approved in 1402, the examination and objection to the decisions of the specialized administrative authorities are carried out in the form of formal examination. However, the new will of the legislator in the amended law of the Administrative Court of Justice in 1402 has opened a new horizon in the manner of judicial review of these decisions. Although the prevailing practice of the branches of the Court is still based on formal examination. However, Article 64 of the new law establishes an explicit provision. According to this legal article, if the plaintiff requests, the branch of the Court is obliged to review the substantive decision of the specialized administrative authority based on the expert opinion. Selection boards, as one of the most important examples of specialized authorities with votes that are often confidential and based on the judgment of the board members, are not exempt from this provision. Therefore, if the plaintiff's objection is directed at the nature of the "diagnosis" of the selection authority, the branch of the Court will be required to refer the case to an expert and issue a substantive ruling. On the other hand, Articles 34 and 166 of the Constitution of the Islamic Republic of Iran also emphasize and clarify the right of individuals to appeal as an indisputable right and the reasonedness of court decisions. The present study, using a descriptive-analytical method and with the aim of analyzing the extent to which judicial practice complies with this legal development, criticizes the decision of Branch 29 of the Court of Appeals. The findings show that the aforementioned decision, despite claiming to examine the contents, is in conflict with the principles of fair trial and the reliability of decisions by ignoring the obligation stipulated in Article 64 and failing to argue about the criteria of "choosing the best"
Keywords

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