Abdollah Farivar Moqadam: One Person’s Story

Human rights violations in this case

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 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

Information regarding the execution of Mr. Abodllah Farivar Moghaddam was obtained from numerous sources including the IRNA website, quoting Mazandaran Province Judiciary’s Office of Public Relations (February 21, 2009), Meydan-e Zanan (“Women’s Square”) (February 19, 2009), the Abdorrahman Boroumand interview with the author of the Meydan-e Zanan report based on the court decision, the certificate of Sigheh or “temporary marriage”, and an interview with a person close to Mr. Farivar, Etemad newspaper (February 21, 2009), and BBC Persian (February 19, 2009). Additional information was obtained through other sources.*

Mr. Farivar was 50 years old, married, with 2 children. He was a music instructor in the city of Sari. In 2005, Mr. Farivar entered into a temporary marriage with his student.

According to available information, Mr. Farivar Moghaddam’s case was related to “sexual offenses”.

Arrest and detention

Based on available information, following the filing of a complaint by the father of one of Mr. Farivar’s female students at the Sari General Prosecutor’s Office on December 5, 2004, alleging Eghfal” (enticing, deceiving, or duping someone into engaging in sexual relations) of her 16-year-old daughter, Mr. Farivar Moghaddam was summoned and detained by Sari Criminal Court Branch Two. Upon the issuance of a court order, he was turned over to Sari Police Force where he was kept for 21 days, from February 7, 2005 until February 28, 2005. During detention, Mr. Farivar Moghaddam was interrogated by the Police Force Information Office agents and was subjected to physical and psychological torture in order to provide a forced confession.

Trial

Mazandaran Province Criminal Court, Branch Two tried Mr. Farivar over several sessions. The sessions took place on March 6, April 15, and December 17, 2005. The first trial session convened in the presence of the Police Force Information Office agents. Mr. Farivar had an attorney. (Meydan-e Zanan, February 19, 2009).

Charges

The court accused Mr. Farivar Moghaddam of “adultery (as a married man)”. He was accused of having sexual relations with his student prior to entering into temporary marriage with her, while he was married to his wife. (Meydan-e Zanan, February 19, 2009).

The validity of the criminal charges brought against this defendant cannot be ascertained in the absence of the basic guarantees of a fair trial. International human rights organizations have drawn attention to reports indicating that the Islamic Republic authorities have brought trumped-up charges, including drug trafficking, sexual, and other criminal offences, against their opponents (including political, civil society activists, as well as unionists and ethnic and religious minorities.) Each year Iranian authorities sentence to death hundreds of alleged common criminals, following judicial processes that fail to meet international standards. The exact number of people convicted and executed based on trumped-up charges is unknown.

Evidence of guilt

Based on available information, Mr. Farivar Moghaddam’s confessions and the complaint brought by his student’s father formed the basis for the issuance of the sentence against him. On February 7, 22, and 28, 2005, while in detention, he confessed to having had sexual relations with his student in the city of Babol, prior to the temporary marriage. Furthermore, at the trial session of March 6, 2005, he confessed to having had sexual relations prior to marriage. (Meydan-e Zanan, February 19, 2009).

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

After the March 6, 2005 trial session, Mr. Farivar denied his previous admissions in subsequent sessions and stated that those confessions had been made under physical and emotional duress and under threats by the Police Force Information Office agents during detention. (Meydan-e Zanan, February 19, 2009).

Two years before the sentence of stoning was upheld by the Supreme Court, Mr. Farivar sent a letter to judicial authorities in which he stated: “On December 5, 2004, Mr. Abbas Ghannad filed a complaint with the City of Sari General Prosecutor’s Office against me, Abdollah Farivar Moghaddam, alleging “Eghfal” [that I had enticed and duped] his daughter Naghmeh Sadat Ghannad, [into having sexual relations] and requested that the case be sent to the Sari Police Force Information Office to be investigated. On December 13, 2004, Mr. Ghannad stated at the Sari Police Force Information Office: ‘I have a daughter who is now 21; after her treatment, and in order to strengthen her spirits, I sent her to learn to play keyboards with Mr. Abdollah Farivar Moghaddam, where my daughter learned to play keyboards. Recently I noticed that Mr. Farivar had taken advantage of my daughter’s emotional weakness and her young age.’ Ms. Naghmeh Sadat Ghannad, born in 1983, stated: ‘About 4 years ago when I was 16, my father took me to Mr. Farivar Moghaddam to learn to play keyboards. He would touch my body, take me in his arms; I was exactly sixteen years old. I was embarrassed the first year but he kept doing what he did, until after a year, I wasn’t embarrassed anymore and he treated me like we were husband and wife.’ I stated in interrogations that given the Medical Examiner’s certificate number 13/m/3462 dated July 3, 2004, declaring that Ms. Ghannad’s hymen [was not intact or] lacking, I entered into temporary marriage with her on July 10, 2004. Ms. Ghannad stated to the Investigating Judge on January 10, 2005, that I had gone to the Medical Examiner’s Office and requested a certificate of virginity. On January 24, 2005, the Investigating Judge declared the Province Criminal Court not the competent authority [to hear the case] and the case was sent to Criminal Court Branch Two. Branch Two summoned me and I was put at the disposal of the Sari Police Force Information Office agents from February 7, 2005, to February 28, 2005, pursuant to a court order. Fearful of the agents, I had to confess that I had sex with Ms. Ghannad, with her consent, prior to marriage, at the home of Mr. Abbas Malek Afzali in the city of Babol. On August 23, 2005, I declared in court that all the confessions I had made in the previous session were due to the presence of Police Force Information Office agents and the fear I had because of the threats they had made. I deny these confessions. Additionally, given the hospital records attached hereto, my wife suffered from uterus illnesses and I could not have natural sexual relations with her. I was never sent from prison to court on March 6, 2005, let alone make a confession to adultery before the court that day. According to the psychiatrist’s certificate dated February 12, 2005, issued by Sari’s Shahid Zare Hospital, Ms. Ghannad has no emotional or psychological illnesses, let alone me taking advantage of such a thing. Why would I enter into a temporary marriage with Ms. Ghannad if I did not believe in and consider myself bound by the laws of Islam? I married Ms. Ghannad with her consent because of the marital problems I had with my spouse. I said all of this in the April 15, 2005 court session; nevertheless, on December 21, 2005, Mazandaran Province Criminal Court, Branch Two, issued Court Decision number 950 whereby it issued a sentence of stoning on the charge of adultery. On appeal, the case was referred to Supreme Court Branch 41 whose seat is in the city of Mashhad. On August 1, 2006, said Branch issued Court Decision number 117 and upheld the lower court’s decision verbatim. This sentence is contrary to the law and to the tenets of Islam for numerous reasons:

1- Pursuant to Article 43 of the Law on Criminal Procedure, investigations into the crime of adultery by the Police Force is prohibited. The Province Criminal Court, Branch Two, however, turned me over to the Sari Police Force Information Office where I was held from February 7 to February 28, 2005, so that they could conduct investigations into the crime of adultery. Said agents would bring me to court and I, in fear of physical and psychological torture, was forced to confess on February 7, 22, and 28, 2005, to having had sexual relations with Ms. Ghannad prior to temporary marriage. These confessions have no legal credence and value as I did not confess willingly, voluntarily, and intentionally. And why was it necessary for me to be turned over to the Police Force Information Office for investigations if there was sufficient evidence of my guilt already? That was why I explained in the August 23 and December 17, 2005 sessions that the prior confessions had been obtained under duress, and were the result of torture and fear of the Police Force Information Office agents, and I expressly denied those confessions. Therefore, said confessions are void and without legal value and credence pursuant to Article 69 of the Islamic Penal Code. Additionally, pursuant to Islamic Penal Code Article 71, whenever a person confesses to adultery but later denies it, if such confession concerns the type of adultery the punishment for which is death or stoning, the denial does away with and nullifies the Hadd punishments of stoning and death. Unfortunately, the honorable court has not paid attention to this very important issue.

2- I was never sent from the Sari prison to court on March 6, 2005. How did the honorable court state my fourth confession to have been made on that date? According to Islamic Penal Code Article 68, adultery must be confessed to four times, expressly, and without any doubts or misgivings, whereas I confessed to adultery under duress and in fear of agents.

3- No one has testified that I had sexual relations with Ms. Ghannad prior to marriage.

4- My spouse suffered from uterus issues since the year 2000, to the extent that the doctors finally removed it, and I did not have the possibility of sexual enjoyment in a natural fashion. My spouse was ill and, pursuant to Islamic Penal Code Article 86, if a woman has a valid excuse, the punishment of stoning is done away with and nullified. Unfortunately, the honorable court did not pay attention to this matter.

I stated that I had sex with Ms. Ghannad at Abbas Malek Afzali’s home in the city of Babol prior to temporary marriage. According to Ayatollah Khomeini’s Fatwa (religious decree by a high religious scholar), if a person is 24 kilometers (14 miles) away from his wife, the punishment [for adultery] is not stoning. Given that my residence was in Sari and the distance between Babol and Sari is about 50 kilometers (30 miles), why did the honorable judges not pay attention to the matter and issue a stoning sentence in my case? I beg all the authorities to examine my case in accordance with the law, and prevent the sentence of stoning from being carried out.” (Meydan-e Zanan, February 19, 2009).

In an interview with radio Farda, Mr. Farivar’s sister stated: “My brother was arrested in December 2004. He had married a woman six months prior to his arrest but the girl’s father framed him and made up a fake dossier with the influence he had, and they threw him in jail for adultery. My brother had gotten married in June of that same year, but they brought the complaint in December. The judge completely disregarded the evidence and documentation proving the legality of their marriage, and instead focused and relied only on confessions obtained from my brother under duress. The confessions they referred to did not even exist and he was in jail that whole time. That is, there is no entry and exit time to go to court in the prison registry; there was no trial whatsoever, let alone a confession made there at such and such date. They didn’t even put documents attesting to my sister-in-law’s illness, not even the marriage certificate that showed that the girl was married to my brother for [the specified period of] 99 years (as specific time is an element of temporary marriages) in the case file; they did not even take one look at these documents whatsoever, and just took them out of the file. I went to Qom on Monday to see if I could meet with [the then-Head of the Judiciary] Mr. Shahrudi, but they told me he would not be back to work or another two months, that is, until after Noruz holidays (the Persian New year) and cannot receive anyone. We travelled for 48 hours in cold and snowy weather and stood on the street until the offices opened but no one gave us any answers.” (February 1, 2008).

A Summary of the Legal Defects in the Adjudication of Mr. Abdollah Farivar’s case

There are considerable legal defects in this case that [effectively] render Abdollah Farivar’s death sentence illegal. The following is a summary of these defects:

a- Pursuant to Iranian law, preliminary investigations and the questioning of the accused are to be conducted by the prosecutor’s office. The judicial authority at the prosecutor’s office may delegate certain portions of these investigations to law enforcement officials. This rule has, however, one exception: [sex] crimes. The law [generally] prohibits investigation into sex crimes for [particular] reasons, and when permitted, investigations are to be conducted solely by the trial judge. Article 43 of the Law on the General and Revolutionary Courts Rules of Criminal Procedure expressly provides: “With the exception of [sex crimes, otherwise referred to as] cases related to unchaste behavior, judges and examining magistrates may refer search and investigation of witnesses and other persons with knowledge of the case; collection of information, proof and evidence of the crime; or any other action they deem necessary in the investigation of the crime; to law enforcement authorities, once the latter have been properly trained for this purpose. These actions shall have the value of circumstantial evidence. Note – Investigation of [sex crimes or] crimes of unchaste behavior is prohibited, except in cases where the crime is committed in plain sight, or there is a private plaintiff. In such cases, investigation shall be conducted by the trial judge.” As can be seen, the law states that investigations must be conducted by the trial judge where there is a private plaintiff in a sex crime, and no other authority, including prosecutor’s office officials or the police, is authorized to intervene in these cases. According to available reports, however, Abdollah Farivar was arrested by police officers and the trial judge released the accused into police custody for 21 days, whereas he was charged with a sex crime. These police officials interrogated the defendant and obtained a confession from him. All of these actions are instances of preliminary investigation. The judge has, therefore, acted illegally in delegating certain investigations to law enforcement.

b- In his statements, Abdollah Farivar stated that his confession to police officials was obtained under torture and duress, whereas subjecting a defendant to torture and duress are illegal under Iranian laws and considered to be a crime. Furthermore, any confessions or admissions so obtained are without legal credence. Principle 38 of the Iranian Constitution, as well as certain Iranian laws and other international documents to which the Iranian government is a signatory, expressly refer to the matter, considering obtaining confessions under torture a criminal act and individuals who resort to such action as criminals. Therefore, the court should have conducted the necessary investigations into the veracity of the defendant’s claim of torture when he stated that he had made a confession under duress.

c- According to available reports, the Province Criminal Court judges issued a sentence of death by stoning based on the defendant’s confession to commission of adultery. Pursuant to Iranian law, certain conditions must be fulfilled [in order for] confessions to crimes that carry Hadd punishments [to be valid]; for instance, the confession must be made four times and in four different phases before the judge who decides the case. Islamic Penal Code Article 68 provides: “If a man or a woman confesses four times before the judge to adultery, he or she shall be sentenced to the Hadd punishment prescribed for adultery; but if he or she confesses fewer than four times, the punishment shall be one of ‘Ta’zir’, [at the judge’s discretion].” Based on available reports, first, Mr. Farivar’s confession was made to police officers, and secondly, he had not confessed four times before the judge. The important issue, however, is the denial of the confession. In certain crimes, if the defendant, subsequent to making a confession, considers his/her confession to be false for any reason, the court is no longer permitted to cite such confession. The law has put special emphasis on this rule in the crime of adultery with a married woman. Islamic Penal Code Article 71 provides: “When a person confesses to adultery and subsequently denies it, and if the sentence for the confessed adultery is death or stoning [to death], the subsequent denial removes the Hadd punishments of death and stoning; otherwise, the denial after confession shall not result in removal of the Hadd punishment.” Based on available reports, Mr. Farivar denied commission of the crime at trial; the court relied on said confession, however, and issued a guilty sentence based thereon. This action was completely against the law.

d- “Ehsan” (“the condition of a reasonable adult person, male or female, who is married and his/her spouse is at his disposal for his/her sexual pleasure.” Source: Wikifeqh.ir) in Iran has its own special conditions. A person can be considered “Mohsen” (“a man who has Ehsan”) when he has the possibility of having sexual relations with his wife, and it has even been said that a wife’s menstrual cycle, gets the husband out of “Ehsan”. In this case, Abdollah Farivar claimed that his wife had been ill and there was no possibility of having sexual relations with her. It was incumbent upon the Province Criminal Court to conduct the necessary investigations into this and other conditions of “Ehsan”.

e- The Mazandaran Province Criminal Court sentenced Farivar to death by stoning which was upheld by the Supreme Court. In the sentence implementation phase, however, he was executed by hanging. Based on available reports, judicial authorities changed the stoning sentence to a murder sentence. Farivar was sentenced to stoning and judicial authorities were not allowed, under any circumstances, to change that sentence to murder. It seems that this action was taken to escape criticism by human rights organizations, as well as to [bypass] the then-Head of the Judiciary’s directives prohibiting the implementation of death by stoning sentences.

Judgment

On December 21, 2005, pursuant to Court Decision 950, Mazandaran Province Criminal Court, Branch two, sentenced Mr. Abdollah Farivar Moghaddam to “[death by] stoning”. Supreme Court Branch 41 upheld the decision on August 1, 2006. (Meydan-e Zanan, February 19, 2009).

Based on available information, in a phone call to Mr. Farivar Moghaddam’s family at noon on February 18, 2009, the court informed them of the modification of the stoning sentence to death by hanging, and of the time of the implementation of the sentence. That same day, his family went to prison and were told that it was possible that the execution could be stayed if they obtained a letter from Sari’s Friday Prayer Imam [to that effect]. The family went to the Friday Prayer Imam’s office and met with him, but since they were in the process of gathering the documents he had requested, they were not able to meet with him again to obtain the letter. (Etemad Melli newspaper, February 21, 2009).

On Thursday, February 19, 2009, at 6 o’clock in the morning, Mr. Farivar Moghaddam was hanged at Sari Central Prison in the presence of Mazandaran Province General and Revolutionary Prosecutor. (IRNA, February 21, 2009).

Mr. Farivar Moghaddam’s family took possession of his body at 7 o’clock in the morning of February 19, 2009, and buried him a few hours later. (Etemad Melli newspaper, February 21, 2009).

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Amir Kabir News Website (February 1, 2008), Widespread Campaign Against the Regime of A Hundred Thousand Executions (November 29, 2007), Radio Farda (February 1, 2008), International Committee against the Death penalty (April 3, 2007).

Abdorrahman Boroumand Center

for Human Rights in Iran

Abdollah Farivar Moqadam

About

Case