Omid, a memorial in defense of human rights in Iran
One Person’s Story

Seyedeh Tayebeh Hojati

About

Age: 29
Nationality: Iran
Religion: Presumed Muslim
Civil Status: Married

Case

Date of Execution: December 24, 2008
Location: Evin Prison, Tehran, Tehran Province, Iran
Mode of Execution: Hanging
Age at time of offense: 24

Human rights violations in this case

The Legal Context

The Courts

 

Islamic Revolutionary Courts, 11 February 1979-1994

 

In the immediate aftermath of the 11 February 1979 Revolution, an ad hoc tribunal, initially referred to as the Extraordinary Revolutionary Tribunal, was set up to try the officials of the previous regime, for which no specific procedures were devised. In a decree dated 24 February 1979, Ayatollah Khomeini, the revolutionary religious leader, appointed a cleric as Shari’a Judge and instructed him “to issue Shari’a-based rulings,” thereby establishing the foundation of a system of special courts.

 

Initially, the revolutionary courts’ jurisdiction was determined by the religious judge’s interpretation of the Shari’a (Islamic law based on the teachings of the Qur’an, the traditions of the Prophet, the 12 imams, and the teachings of Shi’a scholars. On 17 June 1979, the Revolutionary Courts and the Prosecutor’s Office Rules of Procedure, which was only selectively observed, established the latter’s jurisdiction and make-up.

 

The Courts’ jurisdiction encompassed a wide array of offenses including moharebeh (“waging war with God”), efsad e fel arz (“spreading corruption on Earth”), crimes against national and international security, economic crimes, murder, profiteering, prostitution, rape, and narcotic drugs-related crimes. The law required that two of the three principal members of the Revolutionary Courts be Shari’a judges.

 

 

Islamic Revolutionary Courts, 1994-2002

 

With the adoption of the Law for the Establishment of General and Revolutionary Courts of 14 June 1994, and the Code of Criminal Procedure for General and Revolutionary Courts of 19 September 1999, a uniform code of procedure was applied to both revolutionary and general courts. The jurisdiction of the Revolutionary Courts was limited to 6 categories of offenses:

1. Crimes against national and international security,“moharebeh” (enmity with god) and “efsad e fel arz” (corruption on earth;)

2. defaming Ayatollah Khomeini and the Supreme Leader;

3. plotting against the Islamic Republic of Iran, armed action, terrorism, and sabotage;

4. espionage;

5. smuggling and drug-related crimes; 6. claims under Principle 49 (economic crimes) of the Constitution.

 6. Furthermore, pursuant to the Law on the Manner of Punishing Individuals Engaged in Unauthorized Audio and Visual Activities, Article 11, the revolutionary courts have jurisdiction over crimes that fall within the purview of said Law, including production and distribution of obscene materials and misuse and abuse thereof.

These courts continued, however, to try cases falling outside their jurisdiction, such as theft and sexual offenses. Further, the vagueness of laws regarding national security allowed the revolutionary courts to try political and media crimes whenever they wished to do so.

 

The new law eliminated the Prosecutor’s Office and gave the judges inthe Revolutionary Courts the power to perform the duties of the prosecutor, as well as their own, in any case brought before them.

 

Islamic Revolutionary Courts, 2002-Present

 

The Amended Law for the Establishment of General and Revolutionary Courts of 2002 reinstated the Prosecutor’s Office in both revolutionary and general courts. In cases involving political and media crimes, revolutionary courts’ jurisdiction overlaps with that of Province Criminal Courts.

 

With the passage of the new Rules of Criminal Procedure in 2014, and its coming into force in June 2015, the jurisdiction of the revolutionary courts remains unchanged, with slight modifications in procedural aspects of adjudication. For instance, the new law provides that for crimes subject to the death penalty, life imprisonment, amputation, third degree, or higher, the revolutionary court shall convene with three judges, whereas, prior to the passage of this law, adjudication of all crimes within the jurisdiction of revolutionary courts took place with only a single judge.

The Appellate System of Revolutionary Courts, 1979-Present

 

From their inception until 1994, the rulings of the Revolutionary Courts were not subject to appeal. In the early 1980s a court entitled the Supreme Court of Qom was established in the city of Qom and which reviewed cases of execution and confiscation of properties, thereby forming a first tier form of appeal. The exact date of the creation of the court is not clear, but, based on available information, the court became operational in the early 1980s, even though Ayatollah Khomeini's official order for its creation is dated 1985. The court’s procedure was not systematic and did not meet the international standards for a court of appeals; there was no official record of its jurisdiction. The Supreme Court of Qom was dissolved in 1989.

 

The Law of 14 June 1994 subjected the Courts’ decisions to appeal. An appellate court was established at each provincial capital, called the Province Court of Appeals, composed of a three-judge panel, to review decisions made by the Revolutionary Courts. The Supreme Court was designated as the appellate authority for particular decisions, including those involving capital punishment.

 

Narcotic drugs-related crimes constitute a significant exception to the appeals process. Governed by the Anti-Narcotic Drugs Law of 1988, as Amended on 8 November 1997 and 31 July 3 2010, these crimes are within the jurisdiction of, and are adjudicated on a regular basis by, Revolutionary Courts whose decisions are final. After being handed down by the judge, death sentences are sent to the Prosecutor General or the Head of the Supreme Court as a matter of administrative approval.

 

With the passage of the new Rules of Criminal Procedure in 2014 (and its coming into force in June 2015), however, drug related crimes became subject to appeal as well.

General Courts, 1979-1982

 

In cases not falling under the jurisdiction of the Revolutionary Courts, the system devised under the previous regime continued to function in parallel with new systems devised by laws passed by the Judicial Council, one of which, entitled The Legal Bill for the Establishment of General Courts of 11 September 1979, radically changed the entire structure and categorization of the courts. It divided the courts in three branches: Criminal, Civil, and Peace (a sort of arbitration court dealing with minor financial and other disputes). Specialized courts such as family courts were eliminated.

 

General Courts, 1982-1994

 

The Law of the Amendments to the Rules of Criminal Procedure of 1982 established a new criminal courts system, Criminal Courts I and II. Criminal Court I, established only in provincial capitals, had jurisdiction over more serious offenses, including those punishable by death, and Criminal Court II heard less serious crimes.

 

General Courts, 1994-2002

 

The Law for the Establishment of General and Revolutionary Courts of 14 June 1994 established umbrella courts called General Courts, which replaced and dissolved pre-existing civil and criminal courts. The law dissolved the Prosecutor’s offices and tasked a single person with the roles of judge, prosecutor, and investigator.

 

General Courts, 2002-2015

 

In 2002, the 1994 Law was amended, reviving the role of the Prosecutor’s Office in General Courts. The prosecution offices were re-established in a gradual process over several years. The amended law also re-established specialized branches within general courts dealing separately with criminal and civil matters. In addition, this law allocated a number of branches of the Province Court of Appeals to have original jurisdiction over a number of cases including the most serious offenses, as well as political and media crimes. In these cases, the branches are called the Province Criminal Court.

 

General Courts, 2015 to Today

 

With the passage of the new Rules of Criminal Procedure in 2014 and its coming into force in June 2015, general courts underwent certain changes as well. Criminal courts were divided into Criminal Court One, Criminal Court Two, Military Court, Juvenile Court, and Revolutionary Court. Criminal Court One has jurisdiction over serious crimes such as those subject to the death penalty, life imprisonment, amputation, third degree, and higher, as well as political and media crimes. Criminal Court Two has jurisdiction over other crimes. Another change consists of the establishment of juvenile courts, which adjudicates crimes committed by individuals less than 18 years of age. In cases where the individuals less than 18 commit serious crimes such as those subject to the death penalty, however, Criminal Court One will have jurisdiction, observing rules of juvenile criminal procedure.

 

The Appellate System of General Courts, 1979-Present

 

The Legal Bill for the Establishment of General Courts of 11 September 1979, abolished appeal of most criminal courts’ decisions. The law of 1982 restricted the appeal possibility even further. According to the Islamic Republic authorities’ interpretation of Islamic Law, a qualified jurist’s decisions were not subject to appeal except under special circumstances, such as when the judge realized his own mistake, or another judge advised him so, or when he did not have jurisdiction over the case. Even in such situations, the case would not go to a higher court but would be subject to review by the same judge or another judge at his level. The judges were even urged to call their verdicts “opinions,” so that the possible change in the verdict would not be “haram” (“sinful,” the highest level of prohibition in Islam, disobedience of which would result in a sin).

 

In October 1988, the Majles (Iranian parliament) passed a law regarding review of court judgments. This law provided for an appeal if the conviction was claimed to be based on invalid documentation or false testimony. The defendant could also base an appeal on a point of law or a procedural violation.

 

The appellate system was expanded in other laws in the late 1980s and in 1993. The Law for the Establishment of Criminal Courts I and II of 11 July 1989 created the Branches of the Supreme Court. Crimes of less importance, tried in Criminal Court II, were subject to review by Criminal Court I.

 

For the most important crimes involving death punishment, which were under the jurisdiction of Criminal Court I, the law allowed limited appeal to the Branches of the Supreme Court. Defendants had the right to petition the Supreme Court for appeal in certain cases involving false testimony or procedural violations, and if granted, the case would be remanded to either another criminal court or the original one.

 

Finally, the Law for the Establishment of General and Revolutionary Courts of 1994, as amended in 2002, established an appellate court at each provincial capital, called Province Court of Appeals, composed of a three-judge panel, to review decisions made by both general and revolutionary courts. The Supreme Court was designated as the appellate authority for particular decisions, including those carrying the death penalty, as well as decisions made by the Province Criminal Court.

 

The amended law of 2002, continued the appellate procedure to the Branches of the Supreme Court established by the afore-mentioned law of 11 July 1989

 

The Supreme Court continues to be the competent authority to rule on new trials, which have been provided for in limited circumstances.

With the passage of the new Rules of Criminal Procedure in 2014 and its coming into force in June 2015, the Court of Appeals shall be the competent authority to hear appeals from Criminal Court Two decisions, and the Supreme Court shall hear appeals from Criminal Court One decisions.

Special Courts for the Clergy

 

These courts are rooted in a 1979 decree, issued by Ayatollah Khomeini, which established a committee of religious and noble figures in every region to purge the clergy of anti-revolutionary elements under the supervision of the Revolutionary Courts. Between late 1981 and 1984, a special court in the city of Qom handled, though not systematically, the trial of clerics.

 

On 29 July 1987, Ayatollah Khomeini officially appointed a prosecutor and a member of the clergy as Shari’a judge for Special Courts for the Clergy. On 6 August 1990, a directive was issued regulating the conduct of these courts, the jurisdictional ambiguity of which is such that it effectively extends to “anyone where one of the parties is a cleric” and to “all matters in which the Court is designated as competent by the Supreme Leader.”

 

The court, which was not mentioned in the Islamic Republic's constitution, was mandated to try “pseudo clerics, those related to/connected with the clergy, for public and/or anti-revolutionary crimes, and violations of the prestige of the clergy,” and where the principal suspect is a member of the clergy, “any co-conspirator or assistant, whether a cleric or not.”

 

These courts are generally not open to the public and can issue sentences for all acts and omissions punishable under codified Iranian laws or Shari’a or for any other acts or omissions which can bring dishonor to the clergy or to the Islamic Revolution. Further, in certain particular cases – which have not been defined – where no punishment has been devised by either the Penal Code or even the Shari’a, the Court “can rule as it deems fit.” 

 

The Appellate System of the Special Court for the Clergy, 1979-Present

 

There is no information on any appeal process for the Special Court for the Clergy prior to the 1990 directive. Article 49 of said directive set up, however, an appeals court called Special Appellate Court for the Clergy, the head of which is appointed by the Supreme Leader, to which the decisions of the lower court can be appealed.

 

Military Courts

 

The military court system, independent from the judiciary under the previous regime, became a part of it on 1 December 1981. The Judiciary Organization of the Armed Forces, established in 1986, replaced and merged other military courts and tribunals in existence at the time, namely the pre-revolution Judiciary Organization of the Army, the Revolutionary Tribunal of the Army (established on 8 December 1979), and the Revolutionary and General Court for the Revolutionary Guards (established on 15 July 1979.) The Judiciary Organization of the Armed Forces has its own Criminal Code and follows the country’s general rules of criminal procedure.

 

The Law of the Criminal Procedure of the Armed Forces of 15 May 1985 created Military Courts I and II. Military Court I has jurisdiction over more serious offenses, including those punishable by death, and Military Court II hears less serious crimes.

 

The Appellate System of Military Courts, 1979-Present

 

The law of 8 December 1979, establishing the Revolutionary Military Court, did not provide for any appeals. The Law of 15 May 1985 created a system of appeals through the creation of a two-tier system of courts. The decisions of Military Court II were subject to review by Military Court I. This law also provided that multiple Branches of the Supreme Court be designated as the appellate court to review decisions of Military Court I.

 

The judges

 

1979-1997: Prosecutors and judges are not necessarily law graduates and jurists. Shortly after the Islamic Revolution, a five-member Committee was established to purge the judicial system of undesirable elements, pursuant to the Legal Bill for the Modification of the Judiciary and the Law for Hiring Judges of 8 March 1979. The power of the committee was absolute and its decisions, resulting in a widespread purge of the judiciary, final.

 

The Law for the Conditions of Selection of Judges of 4 May 1981 established the conditions of eligibility for judges. The latter were to be hired among men who were legitimate children and had practical commitment to Islam and allegiance to the Islamic Republic. The law, which led to the hiring of clerics and Islamic legal scholars, also allowed hiring practically anyone as a judge who could “obtain the Judicial High Council’s permission.” Moreover, Note 2 of the Amendments of 4 October 1982 to this law allowed widespread employment of seminary students “who ha[d] general knowledge equivalent to a high school diploma” as judges at prosecutor’s offices in general as well as Revolutionary Courts.  

 

By 1989, the judiciary counted about 2,000 new judges trained in theological seminaries (graduates and students) and political appointees, many having replaced judges trained in law schools.

 

1997-Present: As of this writing (2013) the Law for Hiring Judges and its amendments of 4 October 1982, 7 February 1987, and 9 May 1988 are in full force and form the basis for hiring judges. The Executive Rules of Procedure of 22 December 1997 subjected such hiring to passing an entrance examination and successful completion of an apprenticeship program, the duration of which ranges between one and two years. The law does not limit hiring to men only but does not specify in what capacity women will be functioning, other than an advisory one.

Currently, judges are selected in accordance with the Guidelines on the Recruitment, Selection, and Internship for Judicial Candidates and the Hiring of Judges.

 

Dismissal of Judges: From 1979 to 1989, the judiciary was run by the Supreme Judicial Council which was composed of the head of the Supreme Court, the Prosecutor General (both of whom were appointed by the Supreme Leader), and three judges elected by the entire body of judges in the country. The Council had the power to hire and dismiss judges in accordance with the law.

 

The constitutional reforms of 1989 substituted the Supreme Judicial Council with one person, the Head of the Judiciary. The Supreme Leader, whose mandate is not subject to popular vote, appoints the Head of the Judiciary for a 5-year term. The latter has significant power to influence the dismissal of judges. Dismissal cases are referred to three types of disciplinary courts, presided over by judges appointed by the Head of the Judiciary, who has veto power over any decisions made by the relevant courts.

 

Two of these courts, established in 1991 and 2011, are charged with examining the judges’ conduct from a religious and ideological standpoint. The process does not necessarily involve the defendant and the final decision, left to the Head of the Judiciary, is not subject to appeal.

 

Human rights violations

Based on the available information, the following human rights may have been violated in this case:

  • The right to equality before the law and the right to equal protection of the law.

UDHR, Article 7; ICCPR, Article 26.

The right to due process

  • The right to be presumed innocent until found guilty by a competent and impartial tribunal in accordance with law.

ICCPR, Article 14.1 and Article 14.2.

Pre-trial detention rights

  • The right to know promptly and in detail the nature and cause of the charges against one.

UDHR, Article 9(2); ICCPR, Article 9.2 and Article 14.3.a

  • The right to counsel of one’s own choosing or the right to legal aid. The right to communicate with one’s attorney in confidence

ICCPR, Article 14.3.b and Article 14.3.d; Basic Principles on the Role of Lawyers, Article 1, Article 2, Article 5, Article 6, and Article 8.

  • The right to adequate time and facilities for the preparation of the defense case.

ICCPR, Article 14.3.b.

  • The right not to be compelled to testify against oneself or to confess to guilt.

ICCPR, Article 14.3.g.

  • The right not to be subjected to torture and to cruel, inhuman or degrading treatment.

ICCPR, Article 7; Convention Against Torture and Other Cruel Inhuman or Degrading Treatment and Punishment, Article 1 and Article 2.

Trial rights

  • The right to a fair and public trial without undue delay.

ICCPR, Article 14.1, Article 14.3.c.

  • The right to examine, or have examined, the witnesses against one, and the right to obtain the attendance and examination of witnesses on one’s behalf under the same conditions as prosecution witnesses.

ICCPR, Article 14.3.d and Article 14.3.e.

  • The right to have the decision rendered in public.

ICCPR, Article 14.1.

Judgment rights

  • The right to seek pardon or commutation of sentence.

ICCPR, Article 6.4.

Capital punishment
  • The inherent right to life, of which no one shall be arbitrarily deprived.

Universal Declaration of Human Rights (UDHR), Article 3; International Covenant on Civil and Political Rights (ICCPR), Article 6.1; Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty, Article 1.1, Article 1.2.

  • The right not to be subjected to cruel, inhuman or degrading punishment.

ICCPR, Article 7; Convention Against Torture and Other Cruel Inhuman or Degrading Treatment and Punishment, Article 1 and Article 2.

About this Case

Ms. Hojati was 24, resided in Tehran. She continued her education in prison until she was graduated from high school and even enrolled at a university.

News of the execution of Ms. Seyedeh Tayabeh Hojati was published by various sources including Iscanews on December 24, 2008 and E’temad and Iran newspapers on December 25, 2008. Additional information was taken from the E’temad newspaper on June 30, 2008, December 31, 2007, January 29, 2008, August 24, 2006, and October 4, 2006; the Hamvatan Salam newspaper on June 30, 2008, the E’temad Melli newspaper on January 29, 2008, and other sources.*

Ms. Hojati, daughter of Mohammad Reza, 24, resided in Tehran. She married Mr. Reza Karimpur in December of 2002. They got divorced after a year in December of 2003. But, they got married again (as a temporary marriage) in January of 2004. According to Mr. Karimpur, Ms. Hojati looked like his first wife.

Ms. Hojati’s case was related to the kidnapping and murder of Elaheh Karimpur, the six-year-old daughter of her temporary husband from his first marriage, from her school yard located in Majidieh, Tehran, on February 22, 2004 at noon. Elaheh Karimpur’sbody was recovered from a pit in the Shiyan Park on February 29, 2004.

Arrest and detention

Ms. Hojati was arrested by police during the investigation of the murder of Elaheh Karimpur.

She was first summoned to the police station 190 and interrogated regarding the disappearance of Elaheh on February 22, 2004; however, she was released after denying to have any information about the girl.

A week later Ms. Hojati was arrested on February 28, 2004. After 24 hours, she was transferred to the Under Supervision Section of Tehran Intelligence Police – Department 10 for further investigation. According to the indictment, the temporary warrant for arresting Ms. Hojati was issued on March 10, 2004.

Ms. Hojati was detained for five years. All or part of her detention was in the Evin Prison. According to the Jamejam Online, Ms. Hojati continued her education in prison until gradation from high school and even registered in a university. According to a cellmate in Women Section, prisoners called her Babri [Tiger].

Trial

Branch 74 of the Criminal Court of Tehran tried Ms. Hojati in open session in the presence of five judges on October 28, 2004. Mr. Marzban Taheri and a female attorney defended Ms. Hojati. After her two attorneys objected to the case, the Supreme Court called for reinvestigation and referred the case back to Branch 74 of the Criminal Court of Tehran. Branch 74 of the Criminal Court of Tehran, presiding with another judge and four counselors, tried Ms. Hojati in three open sessions on February 1, 2006, January 3, 2007, and May 23, 2007.

Charges

The charge brought against Ms. Hojati was announced as “murder.” She was charged with the murder of her temporary husband’s daughter on February 22, 2004.

The validity of the criminal charges brought against this defendant cannot be ascertained in the absence of the basic guarantees of a fair trial.

Evidence of guilt

The evidence presented against Ms. Hojati was her “confession” during interrogations, “recovery of the buried alive body of Elaheh,” in Shiyan Park, “testimonies of witnesses during the trial,” and the forensics report.

Eleven days after her arrest, Ms. Hojati confessed to murder at the Intelligence Police Office 10 during so called “technical police interrogations.” She stated that because of her intense love for Elaheh’s father, she did not want to separate from him and considered Elaheh as an obstacle. Therefore, she decided to murder her. (E’temad newspaper on June 30, 2008)

During interrogations, Ms. Hojati confessed that she dissolved 30 Diazepam pills in juice and put Elaheh to sleep. Then, she buried her alive in a pit that she dug before at a quiet spot in the Shiyan Forest Park. Some reports indicated that Ms. Hojati only confessed to the murder of the girl and did say anything about the burial location.

Six days after her disappearance, Elaheh’s body was recovered from the Shiyan Forest Park on February 29, 2004 at 7:35. After performing an autopsy, the forensics’ report declared the cause of death as “suffocation due to entrance of external objects into the respiratory tract.” (E’temad Melli newspaper on January 29, 2008)

The school janitor and two mothers of Elaheh’s classmates were present during the trial and testified as witnesses that they had seen Ms. Hojati leaving the school with Elaheh on the day of the incident. The school janitor pointed at Ms. Hojati and stated: “That day, this woman took Elaheh from the school on the pretext of buying a snack.” Then, Maryam, the mother of a classmate, stood before the court and said: “That day I drove my daughter to school when I noticed Tayebeh’s suspicious movements. The poor girl’s step mother was hidden behind a car before she took Elaheh’s hand and walked away.” (Iscanews)

During the trial, Elaheh’s father stated that an hour after the disappearance of his daughter, when he went to school and showed a picture of Ms. Hojati to her classmates, he became certain that Ms. Hojati had taken Elaheh with her. Therefore, he went to Ms. Hotati’s house and realized that she was not there. Mr. Karimpur referred to the history of abuse of Elaheh by Ms. Hojati and said: “Tayebeh used to detain my daughter in a room all the time.” (Mitra Khal’atbari’s weblog) He also emphasized that the reason for his separation from Ms. Hojati was her abuse of his daughter and the fact that she did not take care of her.

International human rights organizations have repeatedly condemned the government of the Islamic Republic of Iran for its systematic use of severe torture and solitary confinement to obtain confessions from detainees and have questioned the authenticity of confessions obtained under duress.

Defense

During all court sessions and the first interrogation after transferring from the Intelligence Police, Ms. Hojati denied all her confessions of kidnapping and murdering Elaheh and stated that her confessions was taken under pressure and torture by agents of the Intelligence Police. “I said whatever they dictated to me.”

At the Public Prosecution O ffice, and in all three trial sessions at the Province Criminal Court, Ms. Hojati disavowed her previous confessions and stated that her her confession had been made under duress and were not true.

In her defense during the first trial session, she stated: “I did not hate Elaheh. She was a very good girl and listened to me. I loved her and she was like my own child. I even liked my family. My problem was with my husband’s family. If I were to murder anyone, definitely, that person would not be Elaheh.” (E’temad newspaper on August 24, 2006)

During the trial sessions and in their defense statements to the Supreme Court, Ms. Hojati’s two attorneys pointed out several procedural errors and content objections during the investigation, interrogation, and trial of their client. Mr. Marzban Taheri, a defense attorney, questioned the authenticity of his client’s confession during interrogations and stated that there were no interrogation papers between February 29 to March 10, 2004 when she confessed, and stated: “There are no interrogation forms. It’s not clear that what my client was doing at the Intelligence Office during this period. If she was interrogated by inspector Honarmand, how come there is not even one page about the investigation?” (Hamshahri, October 28, 2004)

“I said whatever they dictated to me.”

In their appeal filing during the first trial session, Ms. Hojati’s attorneys listed 13 objections to the forensics report which resulted in referring the case to experts of the Forensics Office for reevaluation. (E’temad newspaper on October 4, 2006) According what the attorneys stated during the trial, tests performed by the Forensics Office regarding the time and cause of death were inconsistent with what Ms. Hojati confessed. According to the forensics report, the time of death was between 48 and 72 hours before February 29, 2004; however, according Ms. Hojati’s confession, she had murdered the girl several hours after her disappearance on February 22, 2004, six days before the body was recovered. Additionally, during her confession, Ms. Hojati stated that she had put Elaheh to sleep using 30 Diazepam pills before burying her. However, there is no indication of the sleeping drug in the forensics report that listed the cause of death as “suffocation due to entrance of external objects into the respiratory tract.”

“If she was interrogated by inspector Honarmand, how come there is not even one page about the investigation?”

Another issue that was dubious and needed investigation, according to Ms. Hojati’s attorneys, was the statement made by Elaheh’s grandmother indicating that she fed the girl at 11:30 a.m. before sending her to school. If Ms. Hojati took the girl from school at noon and murdered her, there should have been food in her stomach; however, there was no sign of any food in her stomach [in the autopsy]. Ms. Hojati’s attorney referred to the contradictions of the two forensics reports and stated: “Forensics doctors had twice offered their opinion regarding this case and each time it has become more ambiguous. Therefore, I ask for the presence of the Forensics Committee members in order to answer questions verbally.”

In response to these contradictions, two forensics doctors participated during the second trial session on May 23, 2007. They stated that knowing the exact time of death was impossible because of the necessary factors, atmospheric conditions, the buried body, changing soil at the burial location, and the rotten corpse. Additionally, some time after the death, the toxicology test result cannot be definite: “The toxicology test result always indicates a plus or minus percentage incorrectness.” (Iscanews)

The burial location, according to Ms. Hojati’s attorneys, was another issue that was inconsistent with Ms. Hojati being the murderer. Because of her body type, she could not carry a six-year-old unconscious child to the top of the hill through such an uneven route.

According what the attorneys stated during the trial, tests performed by the Forensics Office regarding the time and cause of death were inconsistent with what Ms. Hojati confessed.

Ms. Hojati’s attorneys emphasized that no one had seen her murder the girl. They expressed doubts about testimonies of witnesses against Ms. Hojati based on her resemblance to Elaheh’s mother. Ms. Hojati’s attorneys emphasized that she had been at home when Elaheh was kidnapped and the neighbors had seen her. They asked the court to summon more witnesses. Mr. Marzban Taheri introduced two witnesses to the court: “First witness is a sergeant, who was present when the body was recovered, and has described detailed information. The other witness is a woman named Shahnaz Kheiri, the mother of a student who made statements contradicting the other two witnesses.”

During the final court session, Ms. Shahnaz Kheiri testified as a witness and stated that on the day of victim’s disappearance, “I saw Tayebeh without a veil wearing a white jacket pass by our door around 12:30 or 1 p.m.” She continued: “The defendant came to our house along with her mother and told me to testify that I have seen her there [at our house].”

Another ambiguous point regarding the charge of murder against Ms. Hojati, according to her attorneys, were the statements made by the park’s guards. They considered it improbable that a body could stay in the Lavizan Park for a week without them seeing it. According to Ms. Hojati’s attorney, “First of all, considering the cold weather, rain, and snow in March, whatever was buried under the surface would be recognized. Secondly, beasts such as jackals and dogs would find it. In addition, police always patrol the forest and control the park.” (E’temad newspaper on August 24, 2006)

Ms. Hojati’s attorney told the court: “The time of the day when it is claimed Tayebeh kidnapped the child in front of the school and taken her to Shiyan (park) had been a busy time. Many students are off from schools and come to the park. In addition, the guard station overlooks the burial location. Therefore, Tayebeh never could do such a thing in the day light (Hamshahri).”

A Summary of the Defects of Ms. Hojati’s Legal Proceedings

There are certain ambiguities and contradictions in the late Tayebeh Hojati’s case. These ambiguities are such that they can render the court decision without merit. [The existence of] a number of these ambiguities was confirmed by the Supreme Court in the course of the adjudication. We will conduct a legal analysis of the case as follows:

1. After being arrested for the murder of Elaheh Karimpur, Tayebeh Hojati confessed to the murder. In her statements at the Criminal Investigations Office and the Prosecutor’s Office, all of which are considered preliminary stages of investigation, she stated that she had gotten the victim out of school, had given her sedatives, and had buried her alive in the forest. On one occasion, the defendant stated at the Prosecutor’s Office that her statements and her confession had been made under duress and were not true. Further, in three trial sessions at the Province Criminal Court, she disavowed her previous confessions and denied having murdered Elaheh. According to Iranian laws, it is illegal to put a defendant under duress in order to obtain a confession, and any confession so obtained is invalid. Principle 38 of the Constitution of the Islamic Republic of Iran provides: “All forms of torture for the purpose of extracting confessions or acquiring information are forbidden. Compulsion of individuals to testify, confess, or take an oath is not permissible, and any testimony, confession, or oath obtained under duress is devoid of value and credence. Violation of this article is liable to punishment in accordance with the law.” Similarly, the Law on Respecting Legitimate Freedoms and Protecting Citizens Rights of 2004, Paragraph 9, provides: “All manner of torture of the accused to obtain a confession or to force him/her to do any other act is prohibited. Any confessions thus obtained have no legal merit or legitimacy.” Tayebeh claimed the confession made at the Criminal Investigations Office was obtained under duress. It was necessary for the judges to ascertain the veracity of this claim and interrogate the agents conducting interrogations in the case; nothing of the sort was done, however, during the adjudication process.

Furthermore, pursuant to Iranian law, including the Islamic Penal Code and the Law on General and Revolutionary Courts Rules of Criminal Procedure, admissions and confessions are legally valid only when made before the ruling judge. The Law on General and Revolutionary Courts Rules of Criminal Procedure, Note to Article 59, which was in force at the time of the adjudication of this case, provides: “In cases where the court issues a ruling based on the defendant’s confession, or a witness’ testimony, or a testimony about a witness’ testimony, it is mandatory that such confession and/or testimony be made before the court.” In other words, although confession to a non-judge is considered evidence, if the judge relies on the confession and/or admission to issue his ruling, however, it is mandatory that the judge have heard such confession first hand. A confession made to an investigating judge and/or law enforcement officers cannot, therefore, form a basis for the judge’s ruling. Accordingly, it was necessary, first, that the court investigate whether Tayebeh was under duress or not, and second, disregard the confession made in the preliminary stages since the defendant had, in all stages of the trial, denied having committed murder, and had declared her previous confessions false.

2. After examining Elaheh Karimpur’s body, the medical examiner’s office reported that death was due to asphyxiation caused by entry of a foreign object into the respiratory tract. The report confirmed that the victim was buried while she was still alive. This portion of the coroner’s report conforms to the defendant’s initial confession in preliminary investigations; other portions, however, indicate that the defendant’s confession at the Criminal Investigations Office was completely false. In preliminary interrogations, the defendant had stated that she had given a considerable amount of sedatives to the victim, whereas the coroner confirmed that there were no signs of said drugs in her body. In other words, the medical examiner’s test results are in conflict with the defendant’s initial statements. Furthermore, the time of murder declared by the defendant in her initial statements does not correspond with the medical examiner’s report. The time of murder determined by the coroner is four days apart from the time stated by the defendant. This contradiction [and time difference] is so serious as to prove the falsity of Tayebeh’ statements in the preliminary investigations. The Supreme Court took notice of this contradiction and considered it a defect of the investigations. The defendant’s attorneys also reiterated this ambiguity at all stages of the trial and demanded that it be rectified. Province Criminal Court Branch 74 judges summoned officials of the medical examiner’s office to court but the ambiguities were not clarified. Ultimately, the judges issued a decision without making an effort to clarify these contradictions. These ambiguities are an indication of, on the one hand, the falsity of the defendant’s confession at the interrogation stage, and on the other, the lack of necessary and sufficient investigations by the judges. Therefore, since this significant contradiction was not resolved and the judges made no further efforts to do so, the court decision is defective.

3. In criminal cases, investigations must be precise and sufficient. In other words, it is not possible to render a decision in the absence of thorough investigations of all aspects of the case. It appears that the necessary investigations were not conducted in this case. [In fact,] due to defects in the investigations, the court decision was overruled the first time the case was sent to the Supreme Court, and an order was issued to complete said investigations. Even upon renewed adjudication, however, it appears that necessary and sufficient investigations were not conducted. Defense attorneys introduced several witnesses to the court but the court took no action to hear their testimony. The court could also have taken other actions to discover [the truth], including going over video recordings from traffic cameras and/or other places in the relevant location. Furthermore, the defendant’s initial confession indicated that the victim’s clothes had been taken off and that she had been buried without her clothes on. If the victim was not wearing any clothing, it was necessary to take action to discover her clothes so that the clothing, and/or the victim’s body, could be tested for the presence or absence of the defendant’s fingerprints thereon, and thus determine her criminal conduct. It was imperative that the victim’s body and clothes be tested for any trace or mark the murderer may have left, and if necessary, take steps for DNA testing. All of these actions could have provided leads for getting to the bottom of the case but the court showed no inclination to carry out such investigations, and solely relied on traditional methods such as confession and witness testimony.

4Province Criminal Court Branch 74 judges issued their ruling based on [the concept of] “the judge’s knowledge.” The judge’s knowledge must be based on very strong evidence. It appears that the judges considered the defendant’s confession in the interrogation stage, witnesses’ testimony, and the medical examiner’s report, as evidence, and issued the “Qesas-e-Nafs” (“life for a life” retribution) sentence [on that basis], whereas, the witnesses had simply testified to the victim being taken out of school by the defendant; in other words there was no testimony regarding murder and burial of the victim by the defendant. Furthermore, the defendant had not confessed to anything at the trial stage, had denied having committed the murder, and had declared her confession in interrogations false. The coroner’s report also contains ambiguities and defects. These three factors were not strong enough to constitute [and result in] “the judge’s knowledge,” that is, they were not strong enough to prove murder. It seems, therefore, that the court’s decision is not solid enough and was issued based on insufficient and weak evidence.

Judgment

Branch 74 of the Criminal Court of Tehran first condemned Ms. Tayabeh Hojati to death on November 5, 2004. The Supreme Court rejected the ruling based on defects in the investigation and referred it to Branch 74. After a retrial on May 23, 2007, Branch 74 of the Criminal Court of Tehran repeated the death sentence against Ms. Hojati for the second time. Branch 37 of the Supreme Court confirmed the ruling on January 29, 2008 and the Head of Judiciary approved it. (Mardomsalari and Ebtekar newspapers, February 29, 2008)

In July of 2008, after the date of execution of Ms. Hojati was announced, her attorneys sent a letter to the Head of Judiciary, Ayatollah Hashemi Shahrudi, asking for time to get the victim’s family’s pardon. Their request was accepted; however, they were unsuccessful in obtaining the pardon from Elaheh’s parents. Ms. Hojati was finally hanged in the Evin Prison on December 24, 2008.

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*other sources:

Newspapers such as the Khabar-e Jonub on May 27, 2007, Mardomsalari on January 30, 2008, Ebteckar on May 24, 2007 and on January 30, 2008, E’temad on December 31, 2007 and August 24, 2006, E’temad Melli on February 28, 2008, Javan on January 6, 2007 and October 28, 2004, Jamejam on January 4, 2007, Sharq on February 2, 2006, April 14, 2004, and March 8, 2004, Ettela’at and Iran on November 7, 2004, Hamshahri on October 28, 2004, and Hamvatan Salam on November 6, 2004, and the website of Women in Iran in September of 2006, Radio Farda on October 29, 2004, and the weblog of Mitra Kahl’atbari on January 5, 2007.

 

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