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

Shirko Ma'arefi

About

Age: 33
Nationality: Iran
Religion: Presumed Muslim
Civil Status: Unknown

Case

Date of Execution: November 4, 2013
Location: Saqqez, Kordestan Province, Iran
Mode of Killing: Hanging
Charges: Acting against state's security; Sympathizing with anti-regime guerilla groups; War on God
Age at time of offense: 28

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 liberty and security of the person. The right not to be subjected to arbitrary arrest and detention.

Universal Declaration of Human Rights (UDHR), Article 3; International Covenant on Civil and Political Rights (ICCPR), Article 9.1.

  • The right not to be punished for any crime on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time it was committed.

UDHR, Article 11.2; ICCPR, Article 15, Article 6.2.

  • The right not to be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.

UDHR, Article 12, ICCPR, Article 17.1.

  • The right to freedom of thought, conscience, and religion, including the right to change and manifest one’s religion or belief.

UDHR, Article 18; ICCPR, Article 18.1, ICCPR, Article 18.2; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 1 and Article 6.

In its general comment 22 (48) of 20 July 1993, the United Nation’s Human Rights Committee observed that the freedom to "have or to adopt" a religion or belief necessarily entailed the freedom to choose a religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views, as well as the right to retain one’s religion or belief. Article 18, paragraph 2, of the International Covenant on Civil and Political Rights bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to religious beliefs and congregations, to recant their religion or belief or to convert.

  • The right to freedom of opinion and expression, including the right to hold opinions without interference and to seek, receive and impart information and ideas.

UDHR, Article 19; ICCPR, Article 19.1 and ICCPR, Article 19.2.

  • The right to freedom of peaceful assembly.

UDHR, Article 20; ICCPR, Article 21.

  • The right to freedom of association with others, including the right to form and join trade unions for the protection of one’s interests.

UDHR, Article 20; ICCPR, Article 22.1.

  • The right, as a member of a religious or ethnic minority, to enjoy one’s own culture or to profess and practice one’s own religion.

 

UDHR, Article 18; ICCPR, Article 27.

  • 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 appeal to a court of higher jurisdiction.

ICCPR, Article 14.5.

  • The right to seek pardon or commutation of sentence.

ICCPR, Article 6.4.

  • The right not to be tried or punished again for an offence for which one has already been

convicted or acquitted.

ICCPR, Article 14.7.

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

Even at the time of my arrest, I was not willing to use my gun and shoot. The feelings I carried within me were not terror, fear and violence; on the contrary, my heart was filled with love for humanity and a desire for freedom

Mr. Shirko Ma’arefi’s execution was reported by several sources including Bultan News (November 5, 2013), The Campaign to Defend Political and Civil Prisoners (November 4, 2013), Kurdpa (November 4, 2013), and the International Campaign for Human Rights in Iran (November 5, 2013). Additional information regarding this matter was obtained from a voice message and open letters by Mr. Ma’arefi from prison, the interviews of his lawyers, his father’s interviews, his friend’s interview with the Abdorrahman Boroumand Center (ABC Interview) and other sources*.

Mr. Ma'arefi was a single young Kurd from Baneh in Kurdistan. He was from a middle class family who would go to villages for farming in the spring and summer and would come back to Baneh in the fall. Mr. Ma'arefi studied up to high school. According to one of his friends, he was funny and lively; he always laughed and would do whatever he could for his friends.He joined Komala Party in 2004 and was a Peshmerga for four years. During his membership in Komala, he was reprimanded several times due to disruption of the party's order. He was once expelled temporarily during which time he worked at a bakery in Sulaymaniyah, Iraq for two months (ABC Interview).

Several remaining members of the Kurdistan Democratic Party of Iran established the Revolutionary Organization of this party in Iraq in the mid-1960s. Esma’il Sharifzadeh, Abdollah Mo’ini, and Molaavareh were among the leaders of this organization who, inspired by the Cuban Revolution, began an armed guerrilla struggle in Kurdistan. When this group was defeated in 1969 and several of its members were arrested, armed struggle was criticized and the Maoist trend was overcome. When some of its leaders were released in 1978, the Revolutionary Organization of Working People in Kurdistan – Komala was established. Based on Marxist theory, Komala was against the capitalists and landlords and encouraged workers and peasants in Kurdistan to an armed uprising against them and the central government. This organization considered the Kurdish Democratic Party of Iran (PDKI) to be the party of the wealthy and campaigned against it, resulting in several armed conflicts and hundreds dead. In 1982, Komala joined another Marxist group, Sahand, which was primarily concerned with theory, and established the Communist Party of Iran. Then it became the Kurdistan Organization of the Communist Party of Iran – Komala. Years later, this organization separated from the Communist Party of Iran and faced several schisms. The Komala Party of Iranian Kurdistan, led by Abdollah Mohtadi, Komala, and the Kurdistan Organization of the Communist Party of Iran led by Ebrahim Alizadeh are some of these factions. 

The issuing and implementation of the death sentence against Mr. Ma’arefi provoked many reactions. A number of Kurd representatives of Islamic Consultative Assembly wrote a letter to the Chief Justice of Iran demanding that he stop the execution of some young Kurds including Mr. Ma’arefi and expressed concern about the “negative national and international impacts” of their execution and “resentment of Kurds against the system” (Radio Farda, November 17, 2009). The current president of Iraq at the time, Jalal Talabani, demanded that the Chief Justice of Iran stop the execution of Mr. Ma’arefi and another Kurd activist during his trip to Iran in December, 2009 (Radio Farda, November 25, 2009).

Amnesty International (March 30 and May 13, 2011; November 25, 2013) and Human Rights Watch (July 28, 2010) issued a statement and called for urgent action demanding annulment of the death penalty of Mr. Ma’arefi. Coalition Against the Death Penalty (November 4, 2013), the largest coalition against the death penalty in the world issued a statement condemning executions including the execution of Mr. Ma’arefi, while demanding that the European Union, the United Nations, and the international community address the issue of the death penalty in any negotiations with Islamic Republic authorities (Rooz Online, October 26, 2015).

Arrest and detention

While carrying out campaign activities, Mr. Ma’arefi was arrested by the Revolutionary Guards in a village named “Dara Qal’e” near Saqez, and he was transferred to the detention center of the Revolutionary Guards headquarters on July 30, 2008. Although he was armed when arrested, he surrendered himself to the Revolutionary Guards without using his gun. This was confirmed by his lawyer (Iran Emrooz, January 30, 2010). After a week, security guards transferred Mr. Ma’arefi to the Ministry of Intelligence detention center of Sanandaj and transferred him to Saqez Central Prison after two months. He was tortured physically and mentally in the Ministry of Intelligence detention center of Sanadaj. In a voice message from the prison he stated, “They tortured me every night, they beat me every night, they interrogated me asking questions in a way that I had to respond to questions that I didn’t have any information about, they threatened my family, they threatened me that if I didn’t answer their questions they would arrest my sister and my brother and they would bring them here. The situation here was terrifying, we didn’t know what to do. They gave us some mystery pills and forced us to take them every night” (voice message from prison).

Mr. Ma’arefi was imprisoned in Saqez Central Prison for five years. He was deprived of the rights of an ordinary prisoner. For instance, although the prison doctor determined that his peptic ulcer disease had to be cured outside the prison, the prison security officials didn’t approve. According to Mr. Ma’arefi, he wasn’t allowed to use the public library of the prison for some time and he had to show the books he read to the prison security guard. He spent two days in solitary confinement as punishment for carrying a Kurdish-language poetry book (Mr. Ma’arefi’s voice message).

In March, 2012, in protest of his death sentence and his uncertain situation, Mr. Ma’arefi went on a hunger strike.

Trial

Early in the winter 2008, branch one of the Islamic Revolutionary Court of Saqez tried Mr. Ma’arefi in a closed session (The Campaign to Defend Political and Civil Prisoners, November 4, 2013). According to Mr. Ma’arefi, he didn’t have a lawyer in the court and the judge’s insistence that Mr. Ma’arefi admit his charges led to a confrontation between them. The judge didn’t allow Mr. Ma’arefi’s statement and defense to be recorded in the case (Mr. Ma’arefi’s voice message). According to Mr. Ma’arefi’s family’s letter, his trial took only a few minutes (Student Committee for Defending Political Prisoners).

Charges

Mr. Ma’arefi’s charges were “Waging war against God, conspiring against the national security by being a member of Komalah” (the International Campaign for Human Rights in Iran). No information is available on the defendant’s charges in detail.

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

There is no information regarding the evidence presented at trial against Mr. Ma’arefi. According to his lawyer, based on the case, the report given by the Intelligence Ministry Officials was written according to the ruling of the court (Rooz Online, May 1, 2011).

Defense

Based on the available information, Mr. Ma’arefi was not allowed to defend himself effectively. According to Mr. Ma’arefi, he was not allowed to choose a lawyer in the Islamic Revolutionary Court and, in addition, the judge didn’t permit the defendant to defend himself and made him fingerprint his verdict by force. He was only allowed to choose a lawyer after being sentenced to execution (voice message).

Mr. Ahmad Sheikhi and Mr. Khalil Bahramian were the two lawyers who represented him in the court after the trial and issuance of the ruling by the lower court. Both lawyers considered the verdict of the defendant and the ruling illegal and illegitimate. Mr. Bahramian rejected the charges of waging war against God (Moharebeh) and said: “The root of the word Moharebeh is Harb which means ‘war.’ It refers to a person who starts a war against the Islamic Republic. Simply possessing a gun is not Moharebeh but using a gun against the Islamic Republic of Iran constitutes Moharebeh. Despite this, Mr. Ma’arefi wasn’t a member of Komalah but only a Komalah sympathizer. and he didn’t use his gun even when he was being arrested. He believed that the judges were being extreme in issuing these rulings and the Chief Justice of Iran shouldn’t give this case to less experienced judges. According to him, based on article 167 of the constitution, the trial should be carried out with the presence of a jury and just and educated judges” (Radio Koocheh, November 14, 2009).

Mr. Ma’arefi’s family rejected the charge in an open letter: “Shirko is convicted of waging war against God only because he sympathized with a party which hasn’t participated in an armed attack against the Islamic Republic of Iran for years and was active with it its promotional and cultural activities. He was sentenced to execution in a trial that took a few minutes” (Student Committee for Defending Political Prisoners).

According to Mr. Ma’arefi’s lawyers, the lower court issued a ruling based only on the Ministry of Intelligence agent’s report. The lawyers asked why the case was tried in court in the first place if Ministry of Intelligence agents would be the ones issuing the verdict (Rooz Online, November 5, 2015). According to Mr. Sheikhi, because of the fundamental principle of this justice system, the court could not give preference to the report of an Intelligence agent over the testimony of witnesses, but the court did not consider this matter and issued a ruling based on the report of the Intelligence agent alone. Mr. Sheikhi made clear that, “Shirko put his gun down and turned himself in as soon as he knew that the Revolutionary Guards had come to the village, contrary to the claim in the report of the Intelligence agent. They asked his family about this and his family said the same and also said that every resident of the village saw what happened. More than twenty villagers wrote affidavits testifying that Shirko’s claim was true. Further, during the time that Shirko spent outside of the country in Iraqi Kurdistan, he was working in a pastry shop to earn a living and had an official certificate of approval from the Ministry of Labor of Iraq’s government” (Interview with Iran Emrooz, January 31, 2002). Mr. Ma’arefi, in a letter from prison, emphasised that he did not use his gun at the time of his arrest, “Even at the time of my arrest I was not willing to use my gun and shoot. The feelings I carried within me were not terror, fear and violence; on the contrary, my heart was filled with love for humanity and a desire for freedom” (The Campaign to Defend Political and Civil Prisoners, October 7, 2013).

In an another letter and in defense of his right to fight for his ideas, he wrote to the Human Rights Activists, “As an heir to this vigilant nation, among this nation which is alive only because of their Ahura songs, I fought from my mother’s skirt to the foothills from the very beginning when I was only a child, by knowing how to fight and knowing my lost identity, and in my bones I constantly suffered brutal repression over and over again. I chose fighting without any desire for the pleasures of modern life only for humanity to live. This is the path that was started before me and will continue after me. This resistance was formed many years ago and it is beyond borders altogether: it covers the body of this injured nation and all corners of human geography. We, political prisoners of every party and variety, whatever our convictions, have continued our path and will continue it. Our only hope is people and your resistance and fight, human rights activists and civil and social institutions, and we count on you as our voice to continue our fight …” (Student Committee for Defending Political Prisoners, April 15, 2011).

In the defense of their client, Mr. Ma’arefi’s lawyers asked for implementation of Article 18 after which the Chief Justice of Iran declared their client’s verdict of “execution and waging war against God” against Sharia and sent the case to the Public Prosecution Office in Saqez for reinvestigation. According to Mr. Bahramian, “When the case was sent to the Public Prosecution Office in Saqez by the Chief Justice of Iran, the Public Prosecutor of Saqez found some problems in the case. Although he had issued the indictment himself and had demanded execution, this time he found five problems in the case and stated that they did not correspond with articles 186 and 190, which refer to “waging war against God” and that distribution of CDs and notices conform to article 500, and article 500 indicates a maximum of three years of imprisonment.” Explaining the five problems that the Prosecutor of Saqez found in Mr. Ma’arefi’s case, Mr. Bahramian said, “As for the problems, he has formally written that distribution of CDs and notices, bodyguarding, and working at a bakery are not influential activities. He had only distributed CDs and printed announcements; the claims that he was involved in a clash with the Revolutionary Guards and that he tried to fire his weapon, as stated in the Revolutionary Guards headquarters’ report, are not correct. [Claims of] attempted beatings and intimidation of villagers are not right. Moreover, he has written that it is not correct that the accused has confessed to the conflict and that he has not made such a confession” (Rooz Online, November 5, 2015).

Both Mr. Ma’arefi’s lawyers considered the process of the trial against the law and didn’t believe that the Supreme Court of Iran was qualified to examine this case. According to Mr. Ma’arefi’s lawyers, although the Chief Justice of Iran had ordered reinvestigation and modification of the indictment by the Prosecutor, instead of ordering a retrial, the case was sent to the appeal court, which was against the law. However, the court legally made a mistake and disqualified itself and sent the case to the Supreme Court of Iran. According to Mr. Bahramian, the reinvestigation and issuance of a ruling by the Supreme Court of Iran was not legal: “The Supreme Court of Iran was basically not qualified to examine this case. This court only examines cases superficially and does not have the right to examine them substantively. In fact, the Supreme Court of Iran is responsible for appeals or investigation of one aspect of a retrial, that is either acceptance or rejection of a retrial, and considering the fact that the retrial of Shirko was already accepted by the Chief Justice of Iran, even a superficial examination of the case was unnecessary and the case should have been sent to another lower court or an appeal court to be examined” (Rooz Online, November 5, 2015).

According to Mr. Sheikhi, the problem was when the province’s appeal court disqualified itself and sent the case to the Supreme Court of Iran when the case should have been examined by the province’s appeal court, not by the Supreme Court of Iran. According to Mr. Sheikhi, despite the fact that based on article 18, the retrial was ongoing, had not been  rejected, and the Public Prosecutor of Saqez had acknowledged his mistakes in the first court in a written form, the case was not examined (Rooz Online, November 5, 2015).

Judgment

Branch 1 of the Revolutionary Court in Saqez charged Mr. Ma’arefi with “waging war against God” and sentenced him to execution. The verdict was confirmed by Branch 4 of Kurdistan’s appeal court and then Branch 27 of the Supreme Court of Iran (The Campaign to Defend Political and Civil Prisoners). After the Chief Justice of Iran demanded application of “Article 18”, the case was resent to Branch 27 of the Supreme Court of Iran and was confirmed again.

Mr. Ma’arefi was hanged in the visitation hall of Saqez Central Prison on November 4, 2015 without his family being notified, while the warden and the head of prison security of Saqez were present (the International Campaign for Human Rights in Iran). Even he himself was not given advanced notice of  the execution. According to the available information, he was transferred to solitary confinement from the general ward the night before the execution, under the pretext of being punished for smoking, and was transferred from solitary confinement to the execution site the next morning under the pretext of being transferred to Sanandaj prison (Kurdistan Human Rights Network, November 4, 2015). Earlier, in November 2009, Mr. Ma’arefi had been transferred to solitary confinement for execution but the execution was stopped due to the objections and the request of the current president of Iraq at the time, Jalal Talebani (voice message).

Mr. Ma’arefi’s body was transferred to Baneh’s hospital from Saqez prison and was delivered to his family after obtaining their assurance that they wouldn’t hold a memorial service (Rooz Online, November 5, 2015).

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*Other sources: Human Rights Watch News of Kurdistan (November 23, 2009), Radio Farda (November 25, 2009, November 26, 2015), Student Committee for Defending Political Prisoners (March 26 and April 15, 2011), Nedaye Sabze Azadi (April 24 2012), The Campaign to Defend Political and Civil Prisoners (October 7, 2013), Rooz Online (October 26, 2015, May 1, 2011), Radio Koocheh (November 14, 2009), Kurdistan Human Rights Network (November 4, 2015), Iran Emrooz (January 31, 2002).

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