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

Ali Panah Malmir

About

Age: 30
Nationality: Iran
Religion: Islam (Shi'a)
Civil Status: Married

Case

Date of Execution: October, 1990
Location: Nahavand Prison, Nahavand, Hamedan Province, Iran
Mode of Execution: Hanging
Charges: Murder
Age at time of offense: 30

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.

 

Detentions, interrogations, and trials: 1989-1993

Pre-trial detentions

The accused, including political dissidents, were arrested and detained for months without trial, and sometimes without being informed of the charges against them. Detainees were routinely subjected to torture in order to coerce confessions of guilt. A single individual, the judge, was in charge of both the investigation and the interrogation.

Trials

Trials, particularly in the cases of prisoners of opinion, were held in camera. Despite the fact that a 1991 law authorized the presence of a defense attorney, there was no evidence that defendants were permitted access to legal counsel.

Appeal processes

The judgment of the revolutionary court was not subject to appeal. A 1988 law gave defendants tried by penal courts a right to appeal to the Supreme Court in certain circumstances, such as in cases of false testimony or procedural violations. However, if the appeal was accepted, the case was retried by the penal court--not a higher court. Executions were often carried out shortly after the judgment.

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

was known among his relatives and the village people as an educated, successful, and handsome man. Members of his family and close relatives described him as a kind, funny, caring, and responsible individual.

The news and information regarding Mr. Ali Panah Malmir’s execution was obtained through the Abdorrahman Boroumand Center’s interviews conducted with persons with knowledge of the case (June 1 and 29, 2018, August 8, 2018). Kayhan newspaper also published a report about this execution on October 21, 1990.

Mr. Ali Panah Malmir was from the city of Nahavand’s Borzul village, located in Hamedan Province. He was approximately 30 years old and was married. He was a teacher in several villages. Mr. Malmir had a 2-year-old daughter and his wife was pregnant. He had five sisters and a brother, with one of his younger sisters and two younger brothers living with his parents. In addition to being a teacher, Mr. Malmir had a minibus that he drove and thus provided for the expenses of his family and his elderly parents.

According to people with knowledge of the case, he was known among his relatives and the village people as an educated, successful, and handsome man. Members of his family and close relatives described him as a kind, funny, caring, and responsible individual.

Mr. Malmir’s case is related to the death of a young man in the course of a group altercation over agricultural water use in the village.

Arrest and detention

After the altercation in the spring of 1990, the region’s police force arrested Mr. Ali Panah Malmir at his home along with a number of other male members of his family. According to the interviewees, after the fight occurred on the farm and the injured individual was taken to the hospital, the latter’s relatives attacked the homes of Mr. Malmir and his relatives with such intensity that the police had to intervene to defend their lives. The police then arrested Mr. Malmir, his brothers, and several other men in the family and took them to a detention center in the city of Nahavand. Mr. Malmir was interrogated there. Mr. Malmir was detained at Nahavand Prison. According to persons with knowledge of the case, Mr. Malmir was released on bail for a few days and was then returned to prison.

During the few months that he spent in jail, Mr. Malmir was allowed weekly visitations with his family from behind bars.

In mid-October 1990, prison officials told Mr. Malmir’s family to come to the prison for a last visitation.

Trial

Mr. Malmir’s case was initially heard at the Nahavand Court, but the judge subsequently referred it to the Province capital stating that it could not issue a ruling in the case. (Boroumand Center interview). Hamedan Province Criminal Court, Branch One, adjudicated Mr. Malmir’s case. (Kayhan newspaper).

Since the court could not establish that the murder had been committed by Mr. Malmir, the case was determined to fall within the definition of “Lowth” and the rite of “Qassameh” was performed. 

According to available information, the murder victim’s brother testified against the Defendant in court; however, his and other impartial eyewitnesses’ testimony and description of the events was not sufficient to find Mr. Malmir guilty of murder. Since the court could not establish that the murder had been committed by Mr. Malmir, the case was determined to fall within the definition of “Lowth” and the rite of “Qassameh” was performed. Ten of the murder victim’s relatives swore that Mr. Malmir was the murderer. (Boroumand Center interview).

Charges

The court charged Mr. Malmir with “intentional murder”. (Kayhan newspaper). According to available information, he was accused of having murdered a young man in the course of a mass altercation. (Boroumand Center interview).

According to available information, a few days prior to the event, the murder victim had beaten Mr. Malmir’s father, an elderly man, stating that he had used their share of irrigation water to irrigate his own farm. Mr. Ali Panah Malmir went to him to protest his actions but the victim and his brothers attacked him. Mr. Malmir’s brothers and relatives got themselves to the scene of the altercation to defend him and a group fight ensued. In the course of the altercation, the murder victim lost consciousness and was taken to the hospital, where it was determined that he was in a coma due to blows to his head. The murder victim’s family then attacked Mr. Malmir and his relatives’ homes, killing their livestock, destroying their property, and setting their houses on fire.

Persons with knowledge of the case claimed that the victim’s father had said that since the fight was over the father of the family, that he had to introduce his best son as the murderer. That was why Mr. Ali Panah Malmir had been introduced.

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 victim’s family stated in their complaint that Mr. Ali Panah Malmir was the person who had committed the murder. Furthermore, the court accepted the swearing of ten of the victim’s relatives and acquaintances in the form of “Qassameh”* as evidence.

Defense

Mr. Malmir denied the charge of murder at various stages of the adjudication. The eyewitnesses present at the crime scene also testified that they had not seen the Defendant strike a direct blow to the victim. According to persons with knowledge of the case, the evidence was not sufficient to issue an indictment against Mr. Malmir and the court was not able to convict him. According to available information, Mr. Malmir had an attorney of his own choosing but his defense bore no fruit and the court resorted to “Qassameh” in order to issue a ruling. According to persons with knowledge of the case, in response to the Defendant’s father who had stated the people [swearing during the rite of Qassameh] were not even present at the scene of the fight, the judge said: “Well, that’s something they have to answer for on Judgment Day. That does not concern you and me. They swore on the Koran and this boy is convicted.”

He said to the victim’s father: “You are hanging me but I swear to God I did not kill your son. I’m not a murderer.”

According to available information, Mr. Malmir was under pressure to incriminate himself during interrogations. Furthermore, Mr. Malmir’s brothers were beaten and tortured in order to make incriminating statements and admissions against him, but ultimately, none of them made any admissions concerning the murder. According to a person with knowledge of the case, the judge released him for a short time on bail (contrary to what is customary in murder cases) since he knew that Mr. Malmir was not guilty. Mr. Malmir’s relatives found the release to be a good opportunity for him to flee but he had told them that there was no reason for him to run away since he hadn’t committed murder, and if he fled it would not be good for people close to him, especially his family and his sisters, who would be susceptible to harm by the victim’s family.

On the day the sentence was to be implemented Mr. Malmir had said to the victim’s father: “You are hanging me but I swear to God I did not kill your son. I’m not a murderer.”

A summary of the Legal Defects of Mr. Malmir’s legal proceedings

Due to the insufficiency of the evidence against the Defendant, the court considered this case to be an instance of “Lowth”, and ordered for the rite of “Qassameh” to be carried out. “Lowth” occurs when the existence of certain evidence [which is not sufficient to prove the commission of the murder in accordance with the law], makes the judge suspect a particular person, in which case the next of kin can [demand, and the judge can order] the rite of “Qassameh” [in order to] prove the [commission of] murder by said suspect. There is not sufficient information as to what type of evidence existed in the case file which the judge [deemed insufficient] and determined “Lowth” to have occurred. However, given existing information, it seems that the Defendant’s presence at the altercation was an indication of “Lowth” pursuant to Article 37 of the Law of Qesas and Hodud [Punishments] of 1982. Aside from the fact that this Article in a way considers the existence of evidence of the crime, in addition to the person’s presence at the murder scene, to be an instance of Lowth, “Qassameh” is one of the weakest [means of providing] evidence in proving the commission of a crime, and it must be used as a last resort when there is no other way to discover the truth. The information in this case shows that the victim was killed in a mass altercation. A considerable number of people must have witnessed the fight and there must be have been multiple pieces of evidence at the crime scene as well. It therefore seems that if the court had conducted a more thorough investigation, it might have been able to discover the truth without resorting to “Qassameh”. The fact that Mr. Malmir was arrested and subsequently released on bail a few days later, is further indication that the evidence against him was not sufficient.

In the present case, the next of kin introduced ten of their relatives to perform the swearing rite of Qassameh, who collectively swore fifty times. Article 38 of the Law of Qesas and Hodud of 1982 provides: “In order to prove his claim, the plaintiff may invite 49 male relatives who are aware of the commission of the murder, to swear along with the plaintiff himself, in order to prove said claim; in the event that the number of relatives does not reach the required number, they may repeat the swearing until the requirement of fifty oaths has been satisfied; in the event that the plaintiff has no relatives or the plaintiffs are not aware [of the murder] or are unwilling to swear, the plaintiff may swear fifty times in order to prove his claim.” This provision is most certainly contrary to the standards and principles of criminal law: First, swearing in order to prove the occurrence of a crime is no longer a viable means of proof in today’s world, and secondly, Qassameh is a procedure that many Islamic scholars and jurists, as well as Islamic religions have either not accepted, or have solely [allowed its] use for the purposes of dismissing a charge. Furthermore, the fact that the plaintiff or the people he introduces can swear multiple times is contrary to logic and reason; therefore, there is very serious doubt as to the guilt of all persons convicted on the basis of Qassameh.

Judgment

The court sentenced Mr. Ali Panah Malmir to death (Qesas of life) pursuant to the rite of “Qassameh”. The Supreme Court upheld the ruling. Mr. Malmir was hanged in late October of 1990, at Nahavand Prison in the presence of the next of kin.

According to available information, Mr. Malmir had no knowledge of his sentence, and when they had taken him to the yard and had told him to get on the stool he had asked “why should I get on the stool?” At the time of the implementation of the sentence, the Nahavand Prison yard was surrounded by security agents in order to prevent the Defendant’s family and relatives from getting in.

Mr. Malmir had no knowledge of the proximity of the implementation of his sentence during the last visitation with is family and as he was surprised, he had asked his relatives why they had gone to visit him all of them together in one group. That visitation took place in a small room in the Nahavand Prison yard.

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* “Qassameh” means an oath taken by a group of people. It is one of the ways that a defendant’s guilt or innocence can be proven for both intentional and non-intentional offenses. Per Iran’s Islamic Penal Code, “qassameh” is carried out in instances where a crime has occurred and no convincing evidence or witnesses exist which could prove the defendant’s guilt, and where a judge has doubt about the defendant’s guilt based solely on circumstantial evidence – a circumstance referred to in religious jurisprudence as “lowth.” Where “lowth” obtains, the judge is bound to ask the defendant to produce evidence disproving the charge. If the defendant demonstrates his innocence in this way, he is acquitted. Failing this, the plaintiff may perform “qassameh” in order to prove the defendant’s guilt, or request that the defendant perform “qassameh” to disprove the charges. This procedure, which requires a defendant to prove his innocence, is contrary to the principle of presumption of innocence and violates the defendant’s right to remain silent. The principle of the presumption of innocence - recognized in Iran’s constitution, Code of Criminal Procedure, and international agreements to which Iran is signatory – holds that all persons are to be considered innocent until proven guilty. A defendant should not be made to prove his own innocence. Proving the charges made against the defendant by presenting adequate evidence and witnesses is the duty of the prosecuting authority (in the Iranian context, the public prosecutor or a private plaintiff.) The right to remain silent is among the defendant’s rights of defense, affording him the right to refrain from answering questions regarding the charges entered against him. Such silence may not be treated as an indication or evidence of guilt or innocence.

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