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Conversation with Siavash Khoramgah

Abdolsamad Khoramshahi, born in 1328, is a lawyer and a first-class attorney in Iran. He has previously represented individuals such as Afsaneh Norouzi, Shahla Jahed, Delara Darabi, Fatemeh Matin (the oldest prisoner accused of murder), Neda Agha Soltan, and Reyhaneh Jabbari, as well as the victims of the attack on Tehran University.

In this issue of Khat-e-Solh, we are in conversation with this prominent jurist about Article 48 of the Criminal Procedure Code. He considers this article to be in conflict with the right to defense and the rights of the accused, and he explicitly opposes it to Article 35 of the Constitution of the Islamic Republic of Iran.

Khoramshahi stated with the mention of this point that a political lawyer does not work, that “the principle is that if the process is to be judicial and justice is to be served, the lawyer must benefit from all legal mechanisms and have job security and immunity. In our defense, we have the law. The judge is respected and has credibility. The lawyer must also be able to defend the rights of his client with courage and without fear of the arguments he presents.”

How does the selection of a lawyer and the discussion of approved lawyers by the judiciary comply with the principle of the right to defense and the principles stated in the Constitution regarding the rights of the people?

Article 48 of the Criminal Procedure Code, in conflict with the right to defense and the rights of the accused, is in fact contrary and contradictory to that right. It is equally opposed to Article 35 of the Constitution and the rights of citizenship and the accused. The reality is that this article is not in line with the privileges and rights that the Constitution, the Criminal Procedure Code, and other laws have provided for the accused. When it does not align, it must be amended. That is why when it was announced through unofficial channels that 20 lawyers in Tehran had been approved, this issue caused a lot of commotion among lawyers and even other sectors, questioning why this article was put in place and why the rights of the accused have been threatened in this way, contrary to the law. Recently, lawyers have also signed a petition and expressed their opposition in this way.

The right to have a lawyer is stated in the constitution. Every defendant has the right to have a lawyer. In the Criminal Procedure Code of 2013, this right is emphasized and even for charges that carry punishments such as stoning, retribution, execution, and the like, it is stipulated that if the defendant cannot afford a lawyer, a state-appointed lawyer will be provided for them in the first days. This issue was very important. The presence of a lawyer in the initial days of investigations helps to lay the foundation for a fair trial. If certain individuals are designated as approved lawyers by the judiciary – as has happened now – they may not necessarily be trusted by the defendant. The defendant accepts their own trusted lawyer, not the lawyer approved by the judiciary. Therefore, if only a limited number of individuals are allowed to defend the defendants in the preliminary stage, the process becomes more complicated. Because you know that the preliminary investigations are the cornerstone and the beginning of a fair trial. The

To what extent can this issue undermine the justice and rulings of revolutionary courts? Should we not be concerned about harsher sentences being issued in political-security cases?

The discussion here is about an independent lawyer who can defend the rights of the accused without any influence or bias from the judiciary. He uses all his abilities to ensure that the accused receives the privileges provided by the legislator and defends them. It is the duty of the lawyer to secure the privileges and rights of the accused, as they are usually not aware or knowledgeable about legal matters. In fact, it is this lawyer who can balance the scales of justice in front of the judge and prosecutor. Therefore, when this duty is assigned to a specific group of lawyers who are trusted by the judiciary, the investigations may not be conducted properly and fairly. In the court stage, they also rely on these initial investigations. When a criminal case is filed and goes to court, it is already packaged and prepared in a way that the court can make a decision on it. We cannot be optimistic that in a case where independent lawyers were not present and the rights of the accused were not properly and fundamentally secured, the

In fact, we cannot be sure that these lawyers will be able to fulfill their duties and defend the rights of the accused in the best possible way. As you mentioned, it is not possible to hope for a fair verdict or expect a reduction in sentence or a harsher sentence for cases like this where preliminary investigations are conducted with handpicked lawyers. Any outcome is possible.

Is there any doubt that this issue of the presence of approved lawyers by the judiciary, not only in the preliminary investigation stage but also in court, may occur? What is your opinion on this matter?

Such a matter is not foreseen in the law, but in practice it may have been more than two or three years that some human rights lawyers have not been allowed to defend some of the security suspects, and in a way, they are treated unkindly in courts, especially in revolutionary courts, or indirectly told to the suspect that this lawyer does not have the right to defend you and you do not have the right to choose this lawyer.

We have heard such issues. I have also experienced it myself. In some of the cases that have been in the Revolutionary Court, there has been a kind of unkindness and the accused has been encouraged to change their lawyer. As I mentioned, this issue has happened in practice, but we do not have such a thing in the law. If this process continues, it may be that under this law, this issue will spread and the activities and presence of all lawyers who are supporters and activists of human rights and are interested in defending political prisoners will be limited or prevented, and ultimately the rights of the accused will be violated.

In your opinion, what are the characteristics and criteria of the judiciary for selecting these individuals as approved lawyers by this authority, which as you mentioned, have mostly been mentioned in unofficial lists?

There is no specific criterion. As it has been said many times, when a lawyer’s competence is confirmed and they receive a license, the principle is that they have the competence to defend all defendants. It makes no sense for us to say that out of thousands of lawyers with a license, only a certain number have the competence to enter these cases. This goes against all democratic standards, human rights principles, and even current laws in Iran. That’s why this issue has caused so much controversy that we have recently seen judicial authorities talking about adjusting this issue or even some officials talking about removing this provision. In other words, as the saying goes, the soup was so salty that even the cook realized it.

Therefore, not only was there no clear law of progression, but it also took us back to before the criminal justice system. You see, if there is any misconduct in the lawyers’ record, behavior, or speech, the prosecutor’s office and the criminal courts have a supervisory role and take action. The concern that not all lawyers are qualified or trustworthy to defend defendants is unfounded. If any lawyer violates the principles, standards, and practical laws, they will be dealt with. Were there not enough lawyers who have committed misconduct – which may not even be a crime – but their words and actions have led to judicial action and their detention? This is an unnecessary preference – meaning that it is preferred without any reason for a specific number that is not known based on what criteria they were chosen. Of course, the names that are observed show that some of them have had judicial positions or have been radical. These are indicators that may be similar to these individuals.

The discussion is about the blossoming and development of the judiciary when lawyers have the authority to stand against the judiciary. If the Bar Association is to be under the supervision of the judiciary and they determine the defense structure, there will no longer be any independence for the lawyer. A lawyer can fulfill their duties in the best way possible when they can defend the accused without fear or hesitation of arrest. Of course, I must mention that a lawyer does not defend a crime; they defend the accused against the charges brought against them. It has been seen that some of our lawyers make movements or speeches that give off the scent of political slogans. I want to clarify that a lawyer must be brave and informed, but the work of a lawyer is not to chant political slogans. I may have a political stance, but in my defense, I must only speak with my legal knowledge and the language of the law. A lawyer speaks within a circle of legal materials, legal arguments, logic, and procedures used in courts

As I mentioned, the main point is that if the process is to be judicial and justice is to be served, the lawyer must benefit from all legal procedures and have job security and immunity. In our defense, we have the law on our side. The judge is respected and has credibility. The lawyer must also have the courage to defend the rights of their client without fear of the arguments they present.

Why do you think there are no female lawyers on this list?

It didn’t matter, we have a problem with the premise of the case. Even if the name was Ms. 10 Lawyer, the problem wouldn’t be solved. We have an issue with this clause. If the names of women were also on the list, this case would not have a legal justification. However, not acknowledging women is a form of unjustifiable discrimination; although, as I mentioned, we do not accept the premise of the case.

Do you think this provision cannot be considered as part of the efforts made to confront the independence of the Bar Association and its affiliation with the judiciary?

In any case, when many issues are restricted (such as the recent issue of confirming qualifications where many lawyers were disqualified), it shows that the independence of lawyers and the independence of the Bar Association and a series of freedoms predicted by the law are limited. Surely, this limitation of independence is not beneficial for the judicial system or for the people. I believe that one day the officials of the judicial branch will come to the conclusion that having independent associations in every aspect and their lack of dependence on the judicial branch will lead to the implementation of justice. This independence is in favor of defending the rights of the people and ultimately helps achieve a relative justice that must exist in society.

Aside from these issues, another point is that when the judiciary only mentions 20 names on its list in Tehran, how is it possible for this number to be able to handle the legal representation of all the numerous political-security cases?

Some of these lawyers have announced that they will not interfere and have stated that they have been unintentionally selected. The volume of the cases is also not small. The judiciary itself has announced that individuals may be added to this list or even amended. With such a small number of individuals, some of whom have also stated that they do not work, the defense of the accused in these cases will face difficulties. However, there are discussions that may lead to the amendment or modification of this provision, or even some changes and adjustments, in order to partially resolve this issue.

As a final question, please explain what you know about the motivation behind such discussions and turning them into laws.

I think some gentlemen did not approve of the performance of some lawyers in relation to the defendants. We witnessed with some lawyers like Abdolfattah Soltani and Nasrin Sotoudeh who courageously and without financial motivation defend the defendants, what kind of treatments have been taken. Some cases also became controversial. I think this led some gentlemen to want to restrict actions. They decide to rely on the lawyers they trust and limit the reflections and controversies of such cases to some extent.

Finally, it is worth mentioning that it is better for the legislator to be mindful of the element of time and place when enacting a law. The enactment of laws such as this provision undoubtedly goes against the principles of fair trial and the rights of the accused to a defense and the right to choose a lawyer. Such provisions are only provocative, create tension and concern, and cause a great deal of dissatisfaction.

Thank you for the opportunity you have provided to the peace line.