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

Makwan Moludzadeh

About

Age: 20
Nationality: Iran
Religion: Presumed Muslim
Civil Status: Single

Case

Date of Execution: December 4, 2007
Location: Kermanshah, Kermanshah Province, Iran
Mode of Killing: Hanging
Charges: Homosexual rape
Age at time of offense: 13

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, some or all of 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 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 equality before the law and the right to equal protection of the law.

    UDHR, Article 7; ICCPR, Article 26.

The right to due process

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 legal aid and the right to meet with one’s attorney in confidence

    ICCPR, 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; Basic Principles on the Role of Lawyers, Article 8%viol_bprl_8%..

  • 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 or punishment.

    UDHR, Article 5; 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 9.3, Article 14.1, Article 14.3.c.

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

ICCPR, 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.

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.

  • The right of a person not to be subjected to the capital punishment for an offence committed before the age of eighteen. The right not to be deprived of life while pregnant.

    ICCPR, Article 6.5; Convention on the Rights of the Child, Article 37.a.

About this Case

In October 2007, a dazed young man on donkeyback was paraded around the streets of Paveh, his head shaved against his will. His disgrace was only beginning.

The news of the trial, sentencing, and execution of Makwan Moludzadeh was reported on the websites of the E’temad newspaper (Sep. 28, Nov. 16, 2007; Jan. 4 2008), the web-blog of the journalist of this newspaper (Oct 29, Dec. 5 and 13), the newsletter of Amirkabir University in Tehran (AUT News, Oct. 29 and Dec. 15), the Fars News Agency (Dec. 12), Amnesty International (Oct. 26, Dec. 6 and 16), and Human Rights Watch (Dec. 5) of year 2007.

Reports from various sources reflect numerous violations of both Iranian and international laws concerning interrogation, investigation, trial, issuing of the verdict and execution of the ruling. Consequently, this case has been widely reported by various human rights organizations, which demanded that the Iranian government and judiciary halt the execution of Mr. Moludzadeh.

After the ruling, the defendant’s father went to Tehran several times and unsuccessfully attempted to visit the head of the judiciary. Later, in a letter to Ayatollah Shahrudi, he stated: “Makwan’s mother and I beg you to help us save his life. Our twenty-year old son has been condemned to death in contradiction with religious rules and Islamic law. After the arrest of our son in [Sep. 23 – Oct. 22, 2006], we did not even know his charge. I implore you, in my helplessness, to order the review of Makwan’s case.”

In November 2007, due to Makwan’s attorney’s struggles, and those of human rights organizations, Ayatollah Shahrudi, the Head of the Judiciary, ordered a temporary stay of execution. In his rationale, Mr. Shahrudi referred to the Ayatollah Khamene’i’s edict, which states that anal sex must be proven beyond a reasonable doubt. The Head of the Judiciary ordered the Office for the Implementation of Sentences to reinvestigate the case and send its findings to the criminal court of Kermanshah for the review. When this order was received by this Office, Makwan’s attorney was told that it would take at least two months to reinvestigate the case. However, a few days later, the verdict was hastily resent to Tehran, returned to Kermanshah, and the sentence was carried out.

In a press release issued after the execution, the Public Prosecution office of Kermanshah Province rejected the protests regarding the accusations that religious and legal principles had been violated in the case as baseless and stressed that “there is no doubt of the fact that the hideous act of homosexual rape must be punished with execution in Islamic law.”

AUT News, quoting from the web-blog of Kuhyar Gudarz, referred to hostility between the prosecutor and the Moludzadeh family: “It appears that Makwan, who had a short temper, once drove his car recklessly in front of the city prosecutor, after which there were several clashes between them. Once the prosecutor told him: ‘Makwan, I’ll finally kill you.’” The reasons for the non-implementation of Shahrudi’s order of stay, as well as whether or not the violators were prosecuted, are not known.

Before the execution, Amnesty International and Human Rights Watch released statements appealing to the Iranian regime to prevent the execution of Makwan Moludzadeh. These statements pointed out that the accused was 13 at the time of the alleged crime, and the execution sentence is in violation of international and national Iranian law. International law strictly prohibits the execution of those convicted of crimes committed under the age of 18. As a party to the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, Iran is bound by international obligation not to execute minors.

Arrest and detention

Mr. Makwan Moludzadeh was arrested on October 1, 2006, by the order of the prosecutor of Paveh in Kermanshah province. According to E’temad Melli, he was arrested as he was smoking in the garden at the back of their house. His parents were under the impression that he had been arrested because of smoking during the fasting month. A few days later, still unaware of Makwan’s charge, his family found out that Makwan’s head had been shaved and he was forced to sit on a donkey and tour the city in order to be humiliated. The newspaper quote Makwan’s father saying: “That day, I saw that they put him on a donkey and let everyone see him. People would ask us with what charge they forced him to ride a donkey, but we didn’t know what to say. Makwan had done nothing to deserve such humiliation.”

According to Amnesty International (Nov. 26, 2007), Makwan was ill-treated during his interrogations in Paveh. As a protest to such ill-treatment, it was reported that Makwan had a food strike for ten days.

Trial

Mr. Moludzadeh was tried at Branch One of the Criminal Court of Kermanshah. Some trial sessions took place in his home town Paveh.

His attorney pointed out numerous flaws in the proceedings: “At the trial, required by law to carefully examine all evidence in its entirety, three of the plaintiffs were present, who testified several times that their accusation has been false and that Makwan had not committed such an act. They explicitly stated that their [prior] complaints were not true. However, the judges delivered their verdict without sending the plaintiffs for forensic investigation.” The court argued that since several years have passed since the alleged crime, the forensic team would not be able to detect the evidence. By doing so, the court accepted that the act had taken place year ago when the defendant was a minor. However, insisting on the legality of the verdict, the court argued elsewhere that the act started to take place years ago and continued to take place to date. According to the media reports, Makwan maintained that he was innocent throughout his trial (e.g. E’temad Melli).

Charges

Mr. Makwan Moludzadeh was charged with “rape at the age of 13.”

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’s authorities have brought trumped-up charges against their political opponents and executed them for drug trafficking, sexual, and other criminal offences. The exact number of people convicted based on trumped-up charges is unknown.

Evidence of guilt

The reports of his execution refer to the complaint of Makwan’s cousin and three other youth, who claimed to have been molested when Makwan was 13. Makwan’s “confession” that he had had a sexual relationship with a boy in year 2000 was also used as evidence against him. The validity of evidence was questioned at the trial. According to the web-blog of the E’temad Melli journalist, Makwan’s cousin had filed the complaint ten days after Makwan’s arrest (for more details see the Defense section).

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

According to available information, Makwan denied his alleged charge. His attorney pointed out the lack of credibility of the “confession” and said: “The letter of the law requires four confessions in the presence of the judge. However, Makwan has confessed only once and at the police station. Moreover, according to the law, if the defendant retracts his confession, the judge should disregard the confession, especially if the confession has occurred only once in the absence of the judge.”

Another report stated that Mr. Moludzadeh had told his father that, when this confession was extracted, his hands were cuffed behind him and a gun was pointed at his head in order to force him to confess. Further, based on available reports, the defendant had not admitted to guilt and had repeatedly stressed his innocence during trial.

With regard to the interrogation, the defendant’s attorney stressed that the arrest and interrogation of the defendant was illegal since in cases of sexual offences, sodomy in particular, the law specifically states that the prosecutor and the security forces should not intervene in any stage of the process including the investigation or the arrest of the accused. In this case, the prosecutor had broken the law by initiating the investigation and providing the court with an indictment that depicted Makwan as a “seditious and dangerous” individual. He stressed that no evidence of “sedition” or criminal record was ever produced in court.

The available information points to the fact that the testimonies of the plaintiffs were false. According to AUT News, the prosecutor had arrested the individuals who allegedly were involved in sodomy and pressured them to confess. In the absence of any private plaintiff, these confessions would have then been submitted to the court. According to Amnesty International, the plaintiffs had subsequently withdrawn their accusations during trial held in Kermanshah and Paveh and “that they had reportedly stated they had either lied previously or had been forced to ‘confess.’” With regard to the plaintiffs, Mr. Moluzadeh’s attorney stated that the defendant’s cousin, who had personal enmity with him and had submitted the first letter of accusation to the investigation office, had also withdrawn his complaint. He had stated that the accusations were unfounded and that he had taken the information for that letter from the case of another individual. The judge, however, did not accept the retraction of plaintiffs’ complaints. Based on the available information, the plaintiffs had not been medically examined because the alleged act took place many years ago, during their childhood. At the same time, the judge had alleged that the crime had argued that the act had been repeated more recently. No evidence was provided, however, to support this allegation.

Finally, another irregularity regarding the process leading to the sentencing of the defendant was the lack of clarity regarding the time the crime supposedly took place. Makwan's attorney noted that the Judge did not elucidate when the alleged act was committed and whether or not it happened when the defendant was a child, was below 15 [age of maturity for boys] or 18 or just before his arrest.

In its statement regarding Mr. Moludzadeh’s case, Amnesty International noted that the “trial was grossly flawed.” It referred to the Iranian Penal Code according to which “those who have not yet reached maturity (puberty) as defined by Islamic Law – are exempted from criminal responsibility.” By law (Article 1210 of the Civil Code), boys reach maturity at the age 15 lunar years, before which they could be sentenced to a maximum of 74 lashes if convicted of anal sex. It further noted that the judge had tried Makwan as an adult “in the absence of medical evidence testifying to his state of maturity at the time of the crime.”

A Summary of the Defects of Mr. Makwan Moludzadeh’s Legal Proceedings 

The information contained in Makan Moludzadeh’s case – which is mostly based on his attorney’s interviews with the media – shows that the entire process of adjudication was wrought with illegality and injustice: from investigating the charges against the late Mr. Moludzadeh, to issuance of the order and implementation thereof. All available information indicates that judicial authorities, acting in a strange and unbelievable fashion, sentenced Moludzadeh to death without a shred of evidence or documentation.

1- According to information published by the late Mr. Moludzadeh’s attorney, he was accused of having committed sodomy by force at the age of 13. Regardless of the veracity of the story, even assuming that such an event had occurred, the judges could not have issued a death sentence since, pursuant to religious and legal regulations, the age of criminal responsibility for boys is 15. Therefore, an individual who commits a crime prior to reaching the age of 15 cannot be held criminally responsible and punished accordingly. One wonders why the adjudicating judges did not pay attention to such a clear and obvious point. At the time of commission of the alleged crime, Makan was under 15, and this in itself is sufficient to void and blemish the sentences issued in condemning Moludzadeh. The former Islamic Penal Code Article 49 expressly holds children, that is, individuals who have not reached the age of majority pursuant to religious tenets, not criminally responsible. 

2- According to Iranian law, crimes related to public morals are directly adjudicated in court; law enforcement officials and the prosecutor’s office cannot conduct preliminary investigations in such cases. Since sodomy is also considered a crime against public morals [a lewd act], the case should have been brought under the court’s direct supervision, and investigations conducted therein, whereas available information in Moludzadeh’s case indicates that he was interrogated under the prosecutor’s supervision after his arrest, and a confession obtained in the Criminal Investigations Office. This is in direct conflict with existing laws, and therefore constitutes possible grounds for voiding the issued sentences. Pursuant to the General and Revolutionary Courts Rules of Criminal Procedure, Note to Article 43, investigation of crimes against public morals is prohibited, and in the event there is a private plaintiff, the adjudicating judge alone has the authority to investigate. The prohibition against referring crimes against public morals, including sodomy [to unauthorized bodies], has also been expressly stated in the Law for the Establishment of General and Revolutionary Courts, Article 3, Note 3. The lack of attention to this issue is serious cause for consternation. 

3- According to published information, Makan was forced to confess at the Criminal Investigations Office. First, it must be noted that, as stated previously, referring the case [to that Office] was completely against the law. Second, a confession made before anyone other than the adjudicating judge cannot be a basis for the issuance of a sentence. Pursuant to existing Iranian law, including the Islamic Penal Code and the General and Revolutionary Courts Rules of Criminal Procedure, admissions and confessions, especially in cases of crimes that carry Hadd punishments, are valid and carry legal weight when they are done before the adjudicating judge. Therefore, confessions made before the investigating judge or law enforcement officials cannot form the basis of issuance of the judge’s ruling.  The General and Revolutionary Courts Rules of Criminal Procedure, Note to Article 59 provides: “In cases where the defendant’s confession, a witness’ testimony, and/or testimony to a witness’ testimony constitute the basis for the court’s decision, the judge making the decision in the case must personally hear [such confession and/or testimony].” Therefore, even assuming that the late Mr. Moludzadeh had confessed to the crime to law enforcement officials, since he was accused of a crime that carried Hadd punishment, it was absolutely imperative that the court question him de novo, ascertain the validity of the confession, and obtained the defendant’s confession under legal circumstances. Inattention to this issue renders without validity all decisions issued in Makan’s case. 

Furthermore, available information indicates that Makan had been forced to make a confession at the Criminal Investigations Office and was under duress, whereas under Iranian, putting a defendant under duress and torture are illegal and considered a crime. Any admission and/or confession thus obtained is also illegal and without any validity. Principle 38 of the Iranian Constitution as well as other Iranian laws and international documents to which Iran is a signatory, have expressly alluded to that rule, going so far as to define obtaining an admission through torture as a crime, and people who perpetrate the same as criminals. Therefore, not only was the law enforcement officials’ exertion of pressure on the late Mr. Moludzadeh against the law, but so was the court’s reliance on the admission obtained under duress.  

4- Subsequent to the sentence being upheld by the Supreme Court, the attorney in the case presented the matter to the Head of the Judiciary. The latter considered the sentence contrary to the dictates of Shari’a and even invoked a Fatwa issued by the Supreme Leader. The case was remanded to the [city of] Kermanshah Judiciary. In a vague and unclear act, however, and contrary to judicial practice, the Head of the Judiciary’s determination was overlooked, and the death sentence was carried out very quickly. This irregular action indicates that Kermanshah judicial authorities were adamant about executing Moludzadeh, so much so that they overlooked judicial custom. Not informing Moludzadeh’s family and attorney is further proof [of the insistence on carrying out the death sentence.] 

5- The plaintiffs in the case, who had claimed to have been sodomized by Makan, dropped their charges and declared that their previous statements had been lies. Regardless of the reasons for this event, it was necessary from a legal standpoint, given that event and given the prohibition against investigation in crimes against public morals, that the case be closed and Makan be freed. 

6- The judges who issued the sentence, based their ruling on the judge’s knowledge, without clarifying how such knowledge was obtained, whereas the judge’s knowledge must be based on evidence, and such evidence must be presented and stated. No evidence [or testimony] exists in the file, the plaintiffs have said their statements were lies, there is no medical examiner report or opinion, there is no audio or video of the [alleged] event, and the defendant himself had stated that the one admission he made was under duress and was utterly untrue. All of which begs the question: How did the judges acquire their knowledge?

7- According to the law on the manner of carrying out death sentences, the defendant’s family and attorney must be informed of the time and place of the execution; the judicial authorities implemented the death sentence suddenly and in complete secrecy.

Judgment

The judge sentenced Mr. Makwan Moludzadeh to death based on his own “knowledge” on June 7, 2007. The sentence required Makwan to be hanged in the Shahid Kazemi Park in the town of Paveh. The sentence was approved by the Supreme Court on July 9. However, Makwan was hanged in Kermanshah prison’s courtyard on December 4, 2007. His attorney and his family learned of his execution one hour after it took place.

By law, the family of the convict and the attorney must be informed of the time and place of the execution. But in this case, the authorities informed the family by phone and asked them to come and take possession of the body. It was reported that the security in Paveh was heightened after the execution of Makwan. Paveh residents participated in the funeral in great number and brought the city to a standstill.

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