Iranian Lawyers Criticize Proposal to Deprive Defendants of Right to Choose Counsel
Abdorrahman Boroumand Center
June 6, 2018
A wave of protests took shape among attorneys at law and civil activists following the presentation of a 20-person list of attorneys approved by the Head of the Judiciary Branch, who, from now on, will have the exclusive right to represent political/security-related defendants pursuant to “the Note to Article 48”. Most of the critics said that limiting political defendants’ choice of a defense attorney only to those approved by the Head of the Judiciary Branch would be a violation of defendants' rights, the Rules of Procedure, and ultimately, the basic rights of those Iranian citizens who are labeled as political or security defendants in court, not to mention that [for those attorneys on the list, income derived from such representation] would constitute income derived from granting undue special privileges. HRANA asked a number of jurists and attorneys for their opinion on the matter.
HRANA News Agency, Human Rights Activists in Iran’s News Agency, reported that in 2015, a very controversial Note was added to Article 48 of the Law on the Rules of Criminal Procedure. According to said Note, in the preliminary investigations stage of so-called “security-related or political” cases, individuals accused of such crimes may choose their attorney or attorneys only from among attorneys at law approved by the Head of the Judiciary Branch.
Three years after the passage of the aforementioned Note into law, there was no sign of a list of attorneys trusted by the Judiciary Branch being issued, and it was hoped that the Note would either be repealed or amended. Recently, however, the Judiciary Branch issued a list containing the names of 20 trusted attorneys in Tehran, and announced that it had compiled a separate list for every province.
HRANA discussed this Note and the problems and possible objectives associated with it, with several jurists and attorneys at law. The following is their opinions on the matter:
Shirin Ebadi: Listed attornies also have Information Ministry approval
The Note to Article 48 is in complete contravention with the Constitution and with human rights principles, and constitutes a restriction on the right of individuals accused of security-related crimes. There are two main issues related to this problem. The first deals with the attorneys themselves: 20 individuals have been presented from among dozens of lawyers. Among those 20, so far two have been judges who have a record of playing fast and loose in issuing death sentences. For instance, the death sentence in Reyhaneh Jabbari’s case was issued by one of these lawyers; the other was an assistant prosecutor in the trial of the 2009 protestors’ case. This small point alone indicates that the attorneys that have been approved for the list are not just approved by the Judiciary Branch, but also by the Information Ministry and the security apparatus.
The other issue is that in Iran, political and belief-based defendants are charged with security related crimes and prosecuted based thereupon. On that basis, therefore, in future political [crimes] trials, the plaintiff will be the governmental security body, and the attorney and the judge will be approved by that security body. How can you expect justice to be carried out in such a trial?
The solution is for lawyers and political and civil activists to take action against this illegal Note and prevent its implementation, and ask the Majless (Parliament) for its repeal.
Nemat Ahmdi: This Note will ultimately end up damaging the Judiciary Branch
This Note is in violation of Principle 35 of the Constitution: one cannot limit the right to a defense. There are two methods in the preliminary investigations stage: adversarial and defensive. In the adversarial system, once the defendant is arrested, the entire judicial apparatus acts to limit and deprive the defendant [of his or her rights] and most attacks take place against the defendant [at this stage]. The defendant is not allowed to have contact with the outside world in the investigation stage, or to exercise his/her right to an attorney. Our system is unfortunately an adversarial one and the prosecutor’s office rules over the defendant. As for security-related and political cases (very important cases [by their nature]), the plaintiffs are essentially either security forces, information forces, or the prosecutor himself. Therefore, what happens when they are the plaintiffs, when the investigation and trial is conducted by that body, and when the attorney is selected by them as well, is that the there is actually no way out for the accused, not to mention that the possibility of defense is damaged and, for all intents and purposes, destroyed. On February 26 of this year, on the occasion of the Bar Association’s independence, we had two guests: The Judiciary Branch’s Deputy for Legal Affairs, Mr. Khodaiyan, and Majless Vice President, Mr. Motahhari. Both of these people said that they were not informed when the Note had come before the Majless, and Mr. Motahhari even stated that it was not even presented on the floor. Therefore, the passage of the Note is suspect: Did it go through the proper channels of legislation or not?
Furthermore, how can you consider 20 individuals among a pool of sixty thousand attorneys as trustworthy and say the rest are not so, in a Bar Association that is 100 years old?
What is interesting is that these 20 people are not obligated to accept cases; two of them have already announced that they were not aware of the whole affair and were not going to accept such cases. Human rights cases require expertise, and the attorneys who work on these cases take on the dangers associated with them and I don’t believe that any human rights lawyer has ever been paid for his/her services.
This whole business has made a lot of noise all over the world and will end up being very costly for and damaging to the Judiciary Branch.
In my opinion, this Note will not be implemented. The defendants will not trust the attorney once they realize that he/she has been selected by the government. Not only will these ten lawyers not have time to get to all security-related cases, but [what’s worse is that] they have never done any human rights work at all. These cases require time, expertise, and experience. Also, they are under no obligation to accept these cases and no one can force them to do so. These colleagues will refrain from taking on these cases for fear of negative publicity.
Ultimately, because of this Note and the resulting lack of representation, political defendants will not have an attorney.
Mohammad Hossein Aghassi: A government-appointed lawyer cannot be selected to represent individuals opposing that same government
Like other attorneys at law, I am also of the belief that this is in contravention with the Constitution. Mr. Motahhari expressly announced at the Bar Association’s independence ceremonies that this Note has been amended to Article 48 without the knowledge of the Majless. Naturally if this Note is implemented, it will constitute an unfair financial advantage for the designated lawyers, and will mean preventing individuals from retaining an attorney of their choosing, a concept that has been prohibited by law. Further, Principle 35 of the Constitution, which provides for the people’s right to hire an attorney of their choice, is violated by this Note. These are instances that can be said to constitute authoritarianism on the part of the relevant governmental bodies.
I, along with other attorneys who have been active in this area of the law for years, are not considered to be “members of their exclusive club”, because the objective in political and security-related cases is for them to try individuals any way they wish, and they do not want information about the case or about the defendant’s defense to get out; the authorities worry that such leaks are counter to and disruptive of their arbitrary actions.
What has been devised, therefore, is only for those attorneys that are trusted to act pursuant to the regime’s ideology and wishes, to have access to such cases and trials.
There are no financial considerations for attorneys like myself and my colleagues who are active in political and security-related cases. Therefore, it makes no difference to us whether we take on these cases or not. Our objection is to the fact that people’s rights are being violated and their right to choose an attorney they can trust has been taken away from them. You cannot select a government-appointed lawyer to represent individuals who oppose that same government.
Allow me to give you an example: Recently I had gone to Branch 26 for a case on appeal concerning a woman who had been sentenced to three years in prison and two years prohibition from leaving the country, on charges of participating in demonstrations. The Branch then told me that they had to first ascertain whether I was trustworthy or not. I told them what they were saying was illegal because the Note applied only to preliminary investigations, not to trials! However, in what constitutes utter abuse of the provisions of the Note, the court prevented me from defending that woman.
Mohammad Moghimi: The Note to Article 48 is one of the most blatant instances of discrimination
This Note is completely contrary to the Constitution and to international human rights instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights to which Iran is a signatory. Furthermore, it is a breach of lawyers’ labor rights, since those attorneys whose names do not appear on the 20-person list will effectively be deprived of working on such cases; so this is a violation of their labor rights as well as one of the most blatant instances of discrimination. Additionally, pursuant to international human rights instruments as well as the Iranian Constitution, discrimination is prohibited, unless it is in the form of affirmative action intended to help the less fortunate.
Aside from its substance and the manner in which it was passed, it must also be emphasized that the Note is only applicable to preliminary investigations; currently, however, its reach is being extended to cover trial courts and courts of appeal, which is in direct contravention to the law itself.
Once attorneys obtain their license to practice law, they legally have the right to exercise the privileges thereunder, including actually practicing law. In fact, this is an acquired right. This Note is contrary to attorneys’ acquired right. When they are deprived of this right without reason, the right has in effect been violated.
The Note to Article 48 is also a violation of citizens’ right to a defense and to retain an attorney of their own choosing. The process of mounting a defense is compromised when defendants are deprived of choosing an attorney they trust. Every individual must be allowed to freely choose his/her attorney. When this choice is limited to 20 people, not only are these lawyers not independent and trustworthy, but they may even play the role of judge, prosecutor, or interrogator. Only an independent lawyer can be competent and professional.
I believe that lawyers and the Bar Association must adopt a strong position against [the Note] and not accept this list. Defendants and their families must also not give in to this law; it is better not to have an attorney than to have one that’s been selected [and forced upon you]; with such lawyers, their rights will most certainly be violated. The attorneys whose names appear on the 20-person list must announce that they will refuse to take on these cases in [the proposed] fashion, since the process is discriminatory against their colleagues, as well as a breach of the Constitution.
It is not mandatory to abide by a law that is against conscience, morality, reason, and human rights tenets: people can resort to civil disobedience. The law must correspond to principles such as reason and conscience; otherwise it will not be respected.
I have taken a position against this Note in the past and I continue to declare my objection and opposition to it. I am also confident that many of my colleagues object to this law. Unfortunately, one cannot bring a complaint before [a decision-making] body because this Note has already become law. Right now, all that can be done is to inform public opinion through the media so that the ground can be prepared for a speedy change of this law.
Sa’eed Dehghan: It appears that Majless Representatives do not have a proper understanding of laws
In June 2015, Majless precipitously made certain amendments to Article 48 of the Law on the Rules of Criminal Procedure. A law that had heretofore been reasonable and had a number of positive aspects was subjected to certain defects including the Note to Article 48!
A request for the repeal of the Note had already been submitted and we were hoping that after the passage of three years, and because of strong criticism leveled directly against Mjless Representatives – in addition to the fact that the Judiciary Branch had not published a list of trusted attorneys – the Note would be repealed. In June of the current year, however, the list was finally published.
The legislature is at the root of this problem. It appears that Majless Representatives, who are supposed to be the essence of the people’s wisdom and virtues, do not have a proper understanding of laws. Either they do not represent the people, or they do not have a correct understanding of the rights of the people, because depriving people of their right to choose a lawyer violates Principle 35 of the Constitution. It is also a violation of Principle 9 of the Constitution which provides that no one has the right to deprive people of their legitimate freedoms in the name of independence and maintaining the country’s territorial integrity, even through passing new laws.
It is also contrary to Principle 3, Paragraph 9, of the Constitution which prohibits all kinds of undue discrimination. The cause of this problem is the Majless itself. In its final months, the Ninth Majless made numerous extreme and wrong decisions that are contrary even to the principal tenets of Islamic rule, let alone human rights.
Attorneys who practice in this area must be professionals and specialized, and independent of the government, which is not the case of this list. I only saw the name of one person on the list who is independent and a professional in the field, and has worked on specialized matters.
Given all of the above, it seems that the objective [in passing this law] is to violate the rights of citizens who have somehow been entangled in these types of issues. [Passage of that Note] directly affects the citizens’ right to a defense. There may also have been dissatisfaction [on the part of the government] with independent lawyers because their actions were geared toward the defense of their clients and safeguarding their interests. Although the passage of this [new amendment] did not please the people because of what it does to citizens’ rights, it was certainly a welcome and pleasant event for those who engineered the list in that fashion.
We, within the Bar Association, are engaged in activities such as issuing declarations, proposing reforms, repealing the Note, conducting professional meetings, organizing sit-ins, etc. It is, however, very important that we do not lose hope of repealing the Note and that we continue our efforts in that direction.
This issue highlights a larger problem: There is no trust between lawyers and the judicial system; otherwise why would only twenty attorneys be selected from among a huge pool of lawyers. Similarly, lawyers would also have a difficult time responding if you asked them how many courageous and fair judges they knew.
In principle, a lawyer must be independent for criminal justice to be carried out. Principle 35 of the Constitution also provides that if a person is not able to retain an attorney, one must be appointed by the court or free of charge. What that Principle indicates is that there is a direct correlation between the right to a defense and criminal justice. Now, however, the situation has become such that when an individual is in trouble, he/she must go to lawyers approved by the Judiciary Branch, one of whom, as an example, was Mr. Mortazavi’s, the former Tehran Prosecutor’s representative, and stood with him against the people.
I must also allude to some of the things that were going on on the sidelines. Prior to the publication of the list, certain middlemen would call us and ask for money in exchange for putting our names on the list. This is tragic and worrisome. What worries me is that this list can cause a division among attorneys. And some attorneys were hoping that their names would not appear on the list.
In any event, professional/scientific and civil action might help the situation. Some of the judges who are currently adjudicating these cases, particularly those in the Revolutionary Courts, have gone even beyond the Note to Article 48, since, whereas the Note only provides for [selecting attorneys from the list] in the preliminary investigations stage, certain judges extend its reach to apply it to the actual trial and even beyond, to the appeal court process, which only complicates the matter.
If this Note is not repealed, the people’s right to a defense, justice itself, and the mutual respect that governs legal and judicial relations [between all parties] for the purpose of conducting a fair trial, will most certainly be faced with very serious impediments.