Tuesday 28 July 2015 Nargess Tavassolian
Iran's New Law: You Can't Choose Your Lawyer!
Under a controversial new law, journalists and political prisoners in Iran could face further restrictions on their right to a fair trial. The law, which was implemented on June 22, will mean Iran’s judiciary will be entitled to restrict the right to legal counsel, forcing political prisoners or journalists arrested on security-related charges to select a defense lawyer from a small, pre-approved list of lawyers — despite the fact that the right to choose a lawyer independently is enshrined in Iran’s constitution and several other of the country’s laws. Legal experts and campaigners say the new law will be used to crack down on independent reporters, activists, and other dissenting voices in Iran.
Several of Iran’s most notorious judges, including Abolghassem Salavati and Saeed Mortazavi, already restrict defendants’ right to choose his or her own legal defence in practice, but the new law gives them further powers to do this, particularly when it comes to defendants accused of crimes against national security. Authorities routinely hand down security-related charges to journalists, including Washington Post correspondent Jason Rezaian and Serajeddin Mirdamadi , who Judge Salavati sentenced to six years’ imprisonment in July 2014. Cleric Mohammad Reza Nekoonam is also likely to be affected by the law. Though the charges against him have not been made public, they are thought to be in connection with the fact that he challenged views of Ayatollah Makarem Shirazi. Nekoonam was forced to choose a defense lawyer from a list of pre-approved lawyers. Other journalists and activists who could potentially be targeted include British-Iranian Roya Saberinejad Nobakht, who was arrested for comments she posted on Facebook, journalist Saeed Razavi Faghih, Sufi activist and blogger Kasra Nouri . They have all been charged with national security offenses.
Iran’s new Code of Criminal Procedure was provisionally enforced on June 22 after initially being enacted in 2013 and awaiting approval from Iran’s Guardian Council, which ensures the law does not breach Islamic law or Iran’s constitution.
Vulnerable Defendants — From the Start
The controversial provision is set out in Article 48, and states that, in the preliminary investigation stage of a case, an individual accused of crimes against the internal and external security of the country or of any form of organized crime that can be punishable by harsh sentences under Article 302 of Iran’s Code of Criminal Procedure — which includes punishments such as the death penalty, life imprisonment, and the amputation of limbs — will only be allowed to choose his or her lawyer from the pre-approved list of lawyers, which is issued by the head of the judiciary, Sadegh Larijani.
But the new amendment directly contradicts Iran’s commitments as a signatory to international human rights mechanisms, including Article 14 of the International Covenant on Civil and Political Rights.
Under this covenant, the right to choose legal counsel is a key requirement for a fair trial. Iranian laws also grant the right to choose a lawyer. In particular, Article 35 of the constitution states that, in a lawsuit, both parties 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.”
According to Article 48 and 190 of Iran’s Code of Criminal Procedure, an accused person should have access to a lawyer from the moment of his or her detention, and also during any preliminary investigations. The law also stresses that the accused should be informed of this at the time of his or her arrest. According to Article 3 of the Citizenship Rights Law, courts and prosecution offices are legally obliged to respect the accused person’s right to legal counsel. Moreover, as stipulated in the Act of Choosing a Lawyer by the Litigants, “Depriving a litigant from having a lawyer in a trial is illegal, and those judges who do so will face disciplinary sanctions.”
But the head of the judiciary, Sadegh Larijani, has challenged critics of the law. The new code does remove some restrictions for the accused — allowing the accused access to a lawyer from the start of the court proceedings, for example, whereas in the previous code, the judiciary could prevent this access for certain charges for up to a week. But can the new provisions to Article 48 really be considered to be a progressive step toward the rights of the accused? Or does the new amendment actually make it easier to abuse their rights?
According to the previous code, in the initial investigation stage, if a judge deemed the case to be confidential, or if there was reason to believe that the outcome of the trial had been or could be influenced in any way by a third party, and in cases of crimes against national security, an attorney would only be allowed access to his client with explicit permission from the court. The code was extremely vaguely worded, leading many judges to abuse the law when trying journalists and activists.
Crimes Against National Security and Preliminary Investigations
Legal expert Mohammad Olyaeifard argues that, even though the previous code did restrict an accused person’s right to legal counsel, these restrictions only pertained to the presence of the lawyers in the preliminary stage of a case, and did not affect the accused person’s overall right to choose a lawyer. Olyaeifard stresses the importance of the preliminary investigation, especially in so-called “crimes against national security.” In his view, this stage is the most important in the court procedure.
However, legal expert Mousa Barzin Khalifeloo believes the new code is more progressive than the previous code in one way, in that it requires lawyers to be present in all stages of the legal process, and for all cases, regardless of the crime. Under the previous code, lawyers were restricted when it came to certain crimes and certain circumstances. But, at the same time, says Barzin, the code is a step backwards in other ways — particularly when it comes to the stipulation where the accused is forced to choose his or her defence lawyer from the pre-approved list of lawyers. Barzin points out that not only is this against the accused individual’s right to freely choose his defense lawyer, but it also discriminates against lawyers, giving obvious privileges to the lawyers that appear on the judiciary-approved list. “Also, one should take in to consideration that, in security-related charges, the plaintiff is the prosecutor, which is part of the judiciary. So how can the plaintiff choose a lawyer for the defendant? This is clearly against the right to a fair trial. It is against the principle of the independence of lawyers. According to this principle, the judiciary should not be able to interfere in the affairs of lawyers.” says Barzin.
Allowing only certain lawyers to take up certain cases in the preliminary investigation is clearly discriminatory. It goes against articles enshrined in Iran’s constitution, including Article 19, which provides for equal rights of all Iranian citizens; Article 20, which allows for all citizens to “enjoy the protection of the law and enjoy all human, political, economic, social, and cultural rights, in conformity with Islamic criteria,” and Article 3(7), which tasks the government with providing opportunities for all citizens and protecting them from discrimination.
Organized Crime — A Broad Definition
In an interview with Kaleme website, lawyer Nemat Ahmadi also criticizes the new code, reiterating that “organized crime” is not clearly defined within the code. “Hence, it would be probable that in the future any crime where more than one person is involved could be considered to be organized crime. Those accused of this crime would fall under the scope of this amendment”, says Ahmadi.
In response to criticism of the new penal code, Gholamhossein Esmaeili, the Director General of the Justice Department in Tehran province, has said that the restriction in choosing a lawyer is only applicable to the preliminary investigation. He points out that after this phase, the accused is entitled to change his or her lawyer and appoint another.
However, writing on Facebook, activist Reza Khandan, the husband of prominent activist and lawyer Nasrin Sotoudeh, says that the opportunity to change lawyers at a later stage of the legal process is impossible in practice. Those lawyers who the judiciary has deemed appropriate are able to demand high prices because they essentially have a monopoly on providing their services. The individual accused of a crime is forced to pay these prices, and is often unable to settle their legal bills as a result, binding them to a legal contract. Defendants are given no choice but to continue employing the lawyer they originally appointed for the entirety of the case. It is doubtful that these lawyers are able to act independently, under fear of the judiciary disqualifying them.
Despite Larijani’s insistence that the new penal code will not affect the rights of the accused, Iran’s most progressive legal experts argue that the opposite is true.
For journalists and activists trying to hold the government to account and inform Iranian citizens about what is going on in the country, the new law signals a new sinister chapter in the authorities’ attempts to silence dissent.