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.
http://en.iranwire.com/features/6624/
