|
By Mehrangiz Kar (an Iranian attorney and a member of the Bar Association of the Islamic Republic of Iran)
October 2009
Section I: The Investigation Stage
A Legal Analysis of the Investigation Stage:
1- Cases that are principally about the country’s national security usually evolve based on the reports of the bailiffs of the justice administration. In these cases, the authorities of the intelligence service of the Islamic Republic replace the bailiffs in preparing the reports and leading the case. Look at Article 15 of the Procedural Code for the Public and Revolutionary Courts:
Article 15:
The bailiffs of justice administration are officials and officers which, under the supervision of and through being trained by the judicial authority shall proceed to expose and detect crimes, to embark on preliminary investigations, to converse and keep intact evidences and proofs of the crime, to forestall and restrain the defendant from fleeing and/or absconding, to serve notices and processes, and to execute judgments and sentences, in compliance with the law. Such officials and agents shall be as follows:
1. Islamic Republic of Iran Disciplinary Force
2. Jail governors and assistants to the same in charge of prisoners’ affairs
3. Officers and agents of Basij Resistance Force affiliated with the Islamic Revolution Guards Corps which shall be considered as the bailiffs of justice administration, in compliance with specific rules and regulations, and within the limits of tasks and obligations assigned to the same.
4. Other armed forces in cases where National Security Supreme Council shall totally or partially transfer the tasks and duties of the Disciplinary Force to the same as bailiffs of justice administration to the same.
5. Officials and agents whom shall be considered as bailiffs of justice administration, in compliance with specific rules and regulations, and within the limits of obligations and tasks assigned to the same.
Note: The reports rendered by the bailiffs shall be valid only when the same shall be authentic and reliable from the point of view of the judge.
2- The detention of an individual who is only suspected to have perpetuated a crime and who is not yet proved to be guilty of a crime is only for 24 hours. After 24 hours of detention the detainee must be release unless enough documents and accurate reports have been submitted to judicial authorities that prove his/her being guilty. Now let us look at Article 123 of the Procedural Code for the Public and Revolutionary Courts and more specifically the following note of this article:
Article 123:
The defendant shall be under surveillance and arrest from such time when the apprehension order shall be served on him until such time when the same shall stand before the judge.
Note: Apprehension agents and officers shall be duty-bound to immediately have the arrested person surrendered to judicial authorities. They may detain and imprison the defendant exclusively under such circumstances that there shall exist the possibility of collusion, connivance, fleeing by the defendant, and effacement and elimination of the offence traces. However, they shall not be authorized to detain and imprison the accused for more than twenty-four (24) hours, without prior authorization by the judicial authorities.
In addition to Article 123, according to Article 124 the judge should not rely on the unproved reports and documents. Article 124 is as follows:
Article 124:
The judge shall not be authorized to summon and/or apprehend any person, unless there shall exist sufficient proofs and reasons to do so.
3- According to Article 65 of the Procedural Code for the Public and Revolutionary Courts, in order for the judge to begin the investigation stage of the case, the announcement of the judicial bailiffs or the words of trustworthy individuals is sufficient. Article 65, and more specifically section b. of the article, reads as follows:
Article 65:
To initiate investigations and hearings, the following legal circumstances shall be considered:
a. a claim filed by a plaintiff
b. notification, informing and/or giving intelligence by bailiffs of the justice administration or by persons whose assertions and allegations shall be reliable and trustworthy.
c. flagrant crimes provided that the judge shall in person observe and witness the commission of the same.
d. Acknowledgements and confessions made by the defendant.
Note: Initiation of investigations and hearing the action shall depend upon the delegation of such tasks by the chief of the judicial area.
In order for the investigation stage to begin, it is essential that the name of the suspect be mentioned not only verbally, but in a written document. In addition, Article 83 allows the judge to issue a verdict for the suspect’s detention if he finds it necessary to prevent the suspect’s escape or his/her collaboration with the other individuals involved in the case. Article 83 of the Procedural Code for the Public and Revolutionary Courts is as follows:
Artic le 83:
The experts shall be invited for inspection only when their expertise and opinions shall be deemed necessary from scientific or technological point of view. Included among such experts shall be physicians, pharmacologists, engineers, assessors and other professional persons and artisans. If the crime shall concern disturbing security and public peace and order, and if such persons fail to attend the place with no plausible and acceptable excuse(s), or if they abstain from having another person attend the place on behalf of the same, they shall be apprehended by the order of the judge.
4- In national security cases, only the public prosecutor’s office and the Islamic Revolutionary Court have the competence to begin and complete the investigation process. The head of the designated branch of these judicial institutions is responsible for leading the investigation of the suspect. He is then expected to later share some parts of the results of the investigation and the consequential decisions about the case with the investigation judges or the bailiffs of the judicial administration. Now take a look at Article 28 of the Procedural Code for the Public and Revolutionary Courts:
Article 28:
The judicial interrogator shall act under the supervision of the public prosecutor’s judge, and the same judicial interrogator may partially delegate the responsibility of certain investigation to bailiffs of justice administration, in compliance with stipulations made in afore-cited Article 27, in which case they shall report the outcome of investigations carried out to the judicial interrogator.
In addition to Article 27, Article 29 and 30 provide more instructions of the quality of investigation in national security cases:
Article 29:
Officials and agents shall be bound to report the instances of criminal cases, on perception and observation of the same in their district of responsibility, to the chief of judicial complex or his deputy.
Article 30:
The judge of the public prosecutor’s office may personally attend preliminary investigation sessions in order to supervise the manner of investigation.
5- The forbiddance of the seizure of information and confessions under physical and mental pressure is discussed in the laws of the Islamic Republic of 1ran (For further explanation of legal limitations on torture, please find Article 38 of the Constitution of the Islamic Republic of Iran in the appendix of this legal analysis.) A few articles of the Islamic Penal Code explicitly discourage receiving confessions under pressure, and for the most part confessions that are imposed on the accused under pressure are considered invalid.
6- Even though the laws related to the rights of the accused person define the circumstances under which interrogations and confessions are considered legally correct and valid, there is no guarantee for the enforcement of these laws—especially in cases that are mostly about national security.
The lack of the enforcement of these laws is mainly the consequence of not letting attorneys intervene during the investigation stage (Article 35 of the Constitution-in the appendix of this analysis-demonstrates the fact the law acknowledges the right of the accused person for defending himself/herself.) Article 128 of the Procedural Code of the Public and Revolutionary Courts and its note allow the judge to ban the presence of the accused person’s attorney throughout the investigation stage. Article 128 is as follows:
Article 128:
The defendant shall be entitled to have an attorney. The attorney shall be authorized, without having the right to interfere with the investigations and inquiries, to communicate to the judge the instances and matters which shall be deemed required for detection of the truth, or to defend the perpetrator, or to execute the relevant laws and regulations, when the investigations and inquiries shall terminate. The comments made and the opinions expressed by the attorney shall be registered in the process-verbal.
Note: In cases where the matter shall be deemed confidential, or when, at the discretion of the judge, the presence of any person, save the defendant, shall mar or impair the confidentiality of the offence under consideration, and in case the crime shall be related to national security of the country, the attorney may attend the investigations with prior authorization of the public prosecutor’s office.
Conclusion
Despite the aforementioned articles and written laws, authorities of the Islamic Republic of Iran do not hesitate to force suspects, detainees and prisoners whose cases are principally about threats to Iran’s national security to confess under mental and physical pressure. Also, since no attorney is allowed to intervene during the investigation stage, judicial authorities often publicly announce that the accused has eagerly confessed or has repented on his/her own and without any use of mental or physical force.
As I mentioned earlier, the absence of the attorney throughout the investigation stage makes the violation of the rights of the accused person much easier for the judicial authorities and the bailiffs of the judicial administration. Under such circumstances, without any attorney for the defendant and the witness of the procedure, the authorities create an atmosphere of terror and isolation to pressure the individual to confess and to say what is dictated to him/her during the investigation stage. Previous cases that are related to the country’s national security demonstrate that after pressuring the individual to confess and repent, the authorities use his/her words for their own political agendas and eventually issue a bill of indictment.
Although Article 128 of the Procedural Code for the Public and Revolutionary Courts restricts the rights of the accused person in defending himself/herself directly or through an attorney. Article 185 can be used to the advantage of the accused:
Article 185:
In all penal matters, parties to an action shall be authorized to present their attorneys-at law or defense counsels. The hearing session date shall be communicated to the defendant, the private plaintiff, and the appearance and presence of one defense counsel for each party to the case shall be deemed sufficient enough for the court to proceed to hear the case.
Therefore even during the investigation, the accused should be given permission to introduce his/her attorney to the authorities-even though he/she is not allowed to have the attorney intervene during this stage. However, as we are currently witnessing, the judicial authorities of the Islamic Republic often terrify the accused person to a point where he/she announces-in confinement- that there is no need to hire an attorney. In some cases, the authorities forcefully ask the accused person to announce that he/she is going to use the attorney chosen by the court. In defending individuals and in creating legal discourses about them in the media, it is important to make use of the minor elements in articles such as Article 185 of the Procedural Code for the Public and Revolutionary Courts in favor of the accused individual.
Section II: Explanation of the Charges & Different Types of Detention
1- As the investigation stage begins the judge is responsible to clearly explain the topic of the charges and the reasoning behind them. The questions asked during investigation should be clear and useful for the process. The questions should not convey a meaning. It is prohibited to ask suggestive questions and/or to resort to compulsion, elusion, delusion and reluctance. In addition, the responses of the accused should be registered without any changes and interpretation. Please take a look at Articles 129 and 131 of the Procedural Code for Public and Revolutionary Courts:
Article 129:
The judge shall initially inquire about the identity and particulars of the (including name, surname, father’s name, age, occupation, marital status, spouse, offspring(s), and citizenship) as well as his precise address(city, town, district, rural district, street, alley and the number) so that it shall prove possible to serve writ of subpoena as well as other notices. The judge shall warn the defendant to be assiduous with his remarks and comments, and shall clearly and precisely explain the action brought against him and the reasons for such accusations, subsequent to which he shall embark on investigations and inquiries.
The question shall necessarily convey a sense and meaning. It shall be prohibited to ask suggestive questions and/or to resort to compulsion, elusion, delusion, aversion or reluctance. If the defendant shall abstain from and refuse to answer the questions, the facts and circumstances shall be registered and inserted in the process-verbal.
Note 1:
At the very initiation of investigation and inquiry, the judge shall have it explained to the defendant that the place he shall be specifying as his domicile shall be regarded as his legal domicile and that if he shall ever proceed to change his domicile, he shall be bound to immediately notify the court of the new address so that it shall prove practical to serve the notices and orders and that otherwise the notices and the orders shall be dispatched to the old address. If the change of domicile shall be meant to cause delay, to circumvent or to procrastinate in such a manner that it shall probe difficult to serve the orders, notices, and decrees, the new address shall not be accepted; hence, the notices and orders shall, as before, be dispatched to the former address. It shall be the responsibility of the judge in charge of the hearing to make a proper decision over the issue. The petitioner and/or the private plaintiff shall be duty-bound to observe the stipulations made in the instant Article 129 concerning the subject of domicile.
Note 2:
Violations of agents and persons in charge of serving the notices and orders when fulfilling their tasks and duties, and/or generation of a report contrary to and inconsistent with the truth concerning the affair which shall be related to their duties and tasks shall be punished by legal penalties stipulated against such violations, in the relevant laws and regulations.
Article 131:
The answers to the inquiries and questions shall be registered and recorded precisely in the same manner as they shall be uttered, without any changes, alterations or manipulations. Literate perpetrators may write down the answers in person.
The problem is that if the judge decides he is allowed to ban the attorney of the accused from intervening during the investigation stage (Article 128). Therefore since there is no attorney to observe the process or object, during the explanations of the charges the judge, the investigation judge and the bailiffs of the judicial administration easily violate Articles 129 and 139 in treating the accused throughout the process.
2- According to Article 35 of the Procedural Code for the Public and Revolutionary Courts, in a few instances the judge is obliged to issue an order of temporary detention for the accused. Article 35 is as follows:
Article 35:
Under the following circumstances, and in compliance with conditions stipulated in Article 32 of the instant Law and Notes thereof, when the existing proofs, evidences and indications shall establish and confirm the commission of the offence by the defendant, it shall be required to issue a temporary detention order which shall remain in effect until such time when a judgment shall be rendered by the court of the first instance, provided that the temporary detention period shall be not exceed the minimum period of legal punishment stipulated against the offence committed.
a. Premeditated murder, pouring acid on the face or body of a victim, enmity with God, perverseness and corruption.
b. In case of crimes and offences, the legal punishment of which shall be execution, hanging or life imprisonment.
c. In case of thievery, defraudation and swindling, embezzlement and misappropriation, bribery, breach of confidence and trust, forgery, and for using forged documents, provided that the defendant shall have a past record of decisive and final conviction at least for once, or shall have a past record of non-decisive conviction for twice or more, due to commission of any one of the offences cited above.
d. In cases where the release of the defendant person shall result in corruption and perverseness.
e. In case of offences and crimes which are specified and stipulated as per specific laws.
In cases that require the judge to issue a temporary detention order, it is possible to “forcefully” keep the accused in detention until the issuance of the verdict. Article 35 is written in a way that allows the judge to interpret it to include security-related cases. In addition, in security cases the judge is permitted to issue a temporary detention order for the accused. Article 32 is as follows:
Article 32:
In case the existing evidences and indications of the offence, under the following circumstances, shall establish and confirm the commission of the crime by the defendant, it shall be permissible to issue a writ of temporary detention:
a. Offences, the legal punishment for which shall comprise execution, lapidation, or amputation (mayhem).
b. premeditated crimes, the minimum legal punishment for which shall comprise a 3-year imprisonment.
c. offences, subject of Chapter 1 of Book 5 of Islamic Penal Code.
d. In cases where the release of the defendant shall result in likely effacement and elimination of evidences and traces of offence, collusion of the defendant with other persons and/or witnesses of the offence or the informed persons, or if the witnesses shall refrain from giving evidence of the offence. Furthermore, where the defendant shall be likely to flee and/or abscond, which shall prove impossible to forestall in any manner.
e. In the case of premeditated murder, with a request extended by the heirs of slain person in order to abduct and present clear evidence, in which case it shall not exceed six days.
Note 1: In case of offences prejudicial and derogatory to public morality, should the same name not be a personal one, it shall be permissible to temporarily detain the defendant, if the release of the same shall result in vitiation and perverseness.
Note 2: The stipulations made in Clause (d) above shall be applicable to Clauses (a), (b) and (c) as well.
3- According to the law, in cases where temporary detention is not required, the judge can first issue an order for a one-month-long temporary detention and later, based on sufficient reason and evidence, he can extend the term of the temporary detention.
Otherwise, the judge must release the accused by issuing an order for bail until the day of the trial. Please take a look at Article 37 of the Procedural Code for Public and Revolutionary Courts:
Article 37:
Detention orders shall be justifiable, documented, and proven, and all legal evidences and citation invoked as well as the right of the defendant to make an objection to the judgment shall be cited and inserted in the relevant orders and writs.
The judge shall be duty-bound in all cases, after the one-month period elapses, to extend and renew the temporary detention order. Otherwise, he shall release the defendant, having obtained the necessary securities and bail-bonds.
Attorneys often utilize the content of Article 37 in order to defend their client’s rights. Emphasizing on the fact that extending the detention is illegal, after two months of detention attorneys often ask the judge to replace the detention order with another order. Article 37 is worth emphasizing in media coverage about 12 June 2009 case (Even in cases where the detention of the accused in only permissible and not ordered, the accused spends his/her time in detention in complete isolation and no one is allowed to stay in touch with his/her.)
4- According to Article 133 of the Procedural Code for Public and Revolutionary Courts, judicial authorities are permitted to issue the order of forbidding the accused from leaving the country:
Article 133:
The court shall be authorized, considering the significance of the proofs and evidences of the crime, in addition to stipulations made in the afore-cited Article 132, to issue a writ of NE EXEAT, which shall be valid and effective for six (6) months.
However if the court shall deem it necessary, it may proceed to renew the same every six months. Such a writ, upon the service of the process, may be protested and objected within twenty (20) days in the court of appeals of the province.
Note: If the writ shall be rescinded and annulled by the issuing forum or authority, or if the same shall be quashed and disaffirmed by the rehearing forum, or if a writ of NOLLE PROSEQI (writ of non-prosecution) shall be issued, or if the accused shall be found guiltless and be acquitted, the court of the first instance shall be bound to immediately communicate the facts and circumstances to the relevant authorities.
In all the cases where restricting orders such as detention or forbiddance from leaving the country are issued, the accused or his/her attorney could object to the order and the court is obliged to follow up with their objections. What happens in security cases is that judicial authorities- in order to legitimize the case and give it a legally acceptable shape- force the accused to object to the issued order. Since all the different authorities and offices of the intelligence service and the judicial branch function collaboratively and generally take the orders of the higher political power (the Supreme Leader of the Islamic Republic of Iran), almost all the orders issued by the court remain unchanged-despite any kind of objection and appeal.
Probabilities:
If a politically motivated case in which the police, the intelligence service and judicial authorities are involved is referred to the court, the attorney could go to the court and study the case and prepare his /her defenses accordingly. If the accusation of having worked against national security is proved, the accused is tried based on the contents of the first section of Book (5) of the Islamic Penal Code. Articles 498-512 of the Islamic Penal Code are basically the determining legal codes for these cases (The articles are included in the appendix.)
Punishments for these cases could be 6 months, one year, two years, three years, five Years, and ten years of imprisonment.
According the aforementioned articles of the Islamic Penal Code, the chances of decreasing the terms of the punishment are high in these cases. Even though the labels of security-related crimes might seem harsh, at times the entire punishment could be removed in the final stages of the case. This is because the authorities’ main agenda is to receive pre-planned confessions and statements from the individuals who get accused of having threatened the country’s national security. Once the authorities receive the desired confessions and statements from the accused, the legal aspects of I the case lose their importance for the judicial authorities. In cases such as those of post June 12th election, it is highly probable that the regime has a political agenda for detaining them. The political reasoning behind the cases could be to prove the followings to the public:
1) During the Reform Movement the reformist government of Iran has had ties or secret connections with individuals affiliated with the government of the United States.
2) Americans have tried to intervene in Iran’s domestic affairs and to find first hand information about the Iranian regime through reformists and their humanitarian work.
Appendix
Section I
1. Article 38 of the Constitution of the Islamic Republic of Iran:
All forms of torture for the purpose of extracting confession or acquiring information are forbidden. Compulsion of individuals to testify, confess, or take an oath is not permissible; and any testimony, confession, or oath obtained under duress is devoid of value and credence. Violation of this article is liable to punishment in accordance with the law.
2. Article 35 of the Constitution of the Islamic Republic of Iran:
Both parties to a lawsuit have the right in all courts of law to select an attorney, and if they are unable to do so, arrangements must be made to provide them with legal counsel.
Section II
I. The Islamic Penal Code
(Ta’azirat and Preventative Punishment)
A few articles from the Islamic Penal Code (approved in 1996) that address crimes that threaten the Islamic Republic’s national security:
Section One- Crimes Against Internal and External Security of the Country
Article 498:
Anyone with any inclination who forms or administers a faction, association or branch of an association of more than two people in or outside the country under any name or title with the intention of disrupting the country’s security, in case he is not considered as Mohareb [an Islamic legal term denoting a traitor against both the state and God], shall be sentenced to a term of two to ten years in prison.
Article 499:
Anyone who enters into membership with one of the factions or associations or the branches of associations mentioned in Article 498 above, shall be sentenced to an imprisonment of three to five years unless it is proved that the perpetrator has had no knowledge about the intentions of the said groups.
Article 500:
Anyone who, in any manner, makes propaganda activity against the system of the Islamic
Republic of Iran or in favor of groups and organizations opposed to the system shall be sentenced to an imprisonment of three months to one full year.
Article 501:
Anyone who intentionally and knowingly gives drawings, secrets or documents and decisions pertaining to domestic and foreign policies of the country to persons not competent of having knowledge thereof or informs then of the contents of such drawings, secrets and documents which involves a part of espionage, shall be sentenced to an imprisonment of one to ten years with regard to the nature of the crime.
Article 502:
Anyone who carries out one of the espionage crimes in favor of an alien government and against another alien government in the territory of Iran which damages the country’s national security shall be sentenced to an imprisonment of one to five years.
Article 503:
Anyone who, for the purpose of stealing or taking away of plans or acquiring of information regarding political, military or security secrets, enters the relevant positions as well as persons arrested when making a drawing or taking a picture or filming of military strongholds or forbidden locations without the permission of the competent authorities or officials shall be sentenced to an imprisonment of six months to three years.
Article 504:
Anyone who effectively incites combatant forces or persons who, in a way or another, are at the service of the armed forces to mutiny, escape, surrender or decline to enforce military duties with the intention of overthrow of the government or defeat of own forces in the face of the enemy, shall be considered as Mohareb, or else if his actions are effective, he shall be sentenced to an imprisonment of two to ten years, and otherwise, he shall be sentenced to an imprisonment of six months to three years.
Article 505:
Anyone who, with the intention of disrupting the country’s security, collects, through any means, classified information under the cover of the country’s authorities or government officers or other methods as an attempt to put this information at the disposal of others and succeeds in doing so, shall be sentenced to an imprisonment of one to five years.
Article 506:
Should government officers in charge of safeguarding and protecting classified information, who have undergone the necessary training, are debriefed by enemies due to carelessness and failure to observe the principles regarding safeguarding of information, shall be sentenced to an imprisonment of one to six months.
Article 507:
Anyone being a member of Mofsedin (mischief-makers) or groups carrying out actions against the country’s internal or external security without having an occupation or chairmanship in such groups and informs government officers, before being prosecuted, of intentions for crime and the name of persons involved in the crime, or effectively cooperates with government officers after his prosecution is commenced, shall be exempted from punishment. However, if he has personally committed some other crimes, he shall only be given punishment for such crimes.
Article 508:
Anyone or any group cooperating with hostile alien governments in any manner against the Islamic Republic of Iran, and who may not be considered as Mohareb, shall be sentenced to an imprisonment of one to ten years.
Article 509:
Anyone who, in time of war, commits one of the crimes against the internal and external security subject of this section shall be sentenced to the maximum punishments set for the crime.
Article 510:
Anyone who, with the intention of disrupting the national security or helping the enemy, finds out and hides spies who had been assigned to carry out inspections or inflict any kind of damages to the country or causes them to be hidden, shall be sentenced to an imprisonment of six months to three years.
Note: Anyone who does not carry out espionage or does not hide spies but finds out, in any way, individuals and employs them and introduces them to a hostile government or alien governments for the purpose of spying against the country’s security shall be sentenced to an imprisonment of six months to two years.
Article 511:
Anyone who, for the purpose of disrupting the country’s security and inciting the public opinion, threatens to plant bomb in planes, ships and public transportation vehicles or claims that bomb has been planted in the said planes, ships and vehicles, in addition to paying compensation for the damages incurred to the government and individuals, shall be sentenced to an imprisonment of six months to two years.
Article 512:
Anyone who tempts or incites people to fighting and killing of each other for the purpose of disrupting the country’s security, irrespective of whether these actions lead to killing or cause plunder an pillage or not, shall be sentenced to an imprisonment of one to five years.
Note: Punishments set forth in Article 508, 509 and 512 above shall not include persons who, before arrest, have repented.
II. The Constitution
Article 32 of the Constitution of the Islamic Republic of Iran
No person may be arrested except according to and in the manner laid down in the law. If someone is detained, the subject matter of the charge, with reasons (for bringing it), must immediately be communicated and explained in writing to the accused. Within at most 24 hours the file on the case and preliminary documentation must be referred to the competent legal authority. Legal procedures must be initiated as early as possible. Anyone infringing this principle will be punished in accordance with the law.
Article 36 of the Constitution of the Islamic Republic of Iran
A sentence to punishment and its execution must only be by the decision of a competent court, and by virtue of law.
Article 37 of the Constitution of the Islamic Republic of Iran
Innocence is the basic principle No person is considered legally guilty, except in cases where his guilt is established in a competent court.
Article 165 of the Constitution of the Islamic Republic of Iran
Trials are to be held openly and members of the public may attend without any restriction; unless the court determines that an open trial would be detrimental to public morality or discipline, or if in case of private disputes, both the parties request not to hold open hearing.
Article 168 of the Constitution of the Islamic Republic of Iran
Political and press offenses will be tried openly and in the presence of a jury, in courts of justice. The manner of the selection of the jury, its powers, and the definition of political offenses, will be determined by law in accordance with the Islamic criteria.
|
