Siyavash Khoramgah

Shortly before the new Criminal Procedure Code was implemented on the first of Tir, an amendment was added to Article 48 of this law that has shocked everyone, especially the legal community. This amendment obligates political and civil activists to choose lawyers appointed by the head of the judiciary.

Shadi Sadr, journalist and lawyer, speaks about this in regards to peace: “The change in this clause was truly in the 90th minute and under pressure from the Guardian Council, and there was no other opportunity for protest at that time.”

Mrs. Sadr refers to this provision as “institutionalization”, which has been more or less used in courts, and continues: “The deprivation of the right to defense in political cases in the Islamic Republic system has a long history. In the first decade after the revolution, despite thousands of political prisoners in Iranian prisons, perhaps only a handful had the right to have a lawyer.”

As you are aware, the clause of article 48 of the new Criminal Procedure Code has posed a challenge for the legal community. How do you evaluate the purpose of such a law?

Before anything else, it is good to clarify exactly what situation we are talking about. The previous judicial procedure law, whether a lawyer should be present during preliminary investigations or not, in both cases of security charges and other cases, was left to the discretion and permission of the judge. In this way, when a political or civil activist was arrested, not only during the interrogation period in prison, but also in most of the Revolutionary Court interrogations, they were not allowed to have a lawyer. Even in exceptional cases, if a lawyer was allowed to be present, they were not allowed to intervene in the interrogation process. This situation was also true for very ordinary cases. For example, in cases of women sentenced to stoning, I have not even seen one case where a lawyer was present during preliminary investigations.

In the new judicial procedure law, although judges no longer have the right to deprive defendants of the right to have a lawyer in the preliminary stage, in security and organized crimes, they are only allowed to choose a lawyer from a list selected by the head of the judiciary. The creators of this law justify it by saying that since sensitive issues may arise in these cases, only a few select lawyers are trustworthy. But in my opinion, the main purpose of this law is to deprive political and civil activists of their right to defense, as they are often accused of security crimes. The right to defense is a fundamental right and its first requirement is the independence of the lawyer. A lawyer who obtains their legitimacy from the head of the judiciary, who is also a party to the case, will not have the courage or competence to defend their client independently. These lawyers will be forced to protect the interests of the judiciary in order to maintain their position, and the fundamental principle of advocacy, which is to

Mrs. Sadr, have you ever seen or heard of a case or cases where a defendant was deprived of the right to choose a lawyer before the approval of such a law? The question is, in the judicial system of the Islamic Republic, how many defendants have been able to exercise their right to choose a lawyer so far?

The deprivation of the right to defense in political cases in the Islamic Republic system has a long history. In the first decade after the revolution, despite thousands of political prisoners in Iranian prisons, only a handful had the right to have a lawyer. An interview with Lajvardi, the revolutionary prosecutor of Tehran, by a foreign journalist on YouTube is available, where he says: “It is not us who deprive these prisoners of having a lawyer, it is the lawyers who are not willing to accept the defense of these terrorists!” This was at a time when the Iranian Bar Association was occupied by the appointed head of the government, Mr. Eftakhari Jahromi, who is still an active lawyer, and the elected members of its board of directors were either in prison and under severe torture or forced to flee Iran.

Basically, depriving the right to defend political and ideological defendants has a long history with various methods. One of these methods is to accuse the lawyer who defends the prisoner of being guilty and to persecute or harass them. Well, this creates an atmosphere of terror that other lawyers, out of fear of being arrested or losing their license, do not accept political cases and therefore, these prisoners either remain without a lawyer or do not benefit from effective defense.

Another one, threatens to imprison himself or his family if he gets a lawyer, his situation will get worse, or if he gets a human rights lawyer, a heavier sentence will be issued against him.

Of course, the previous procedure law also allowed judges to prevent lawyers from being present during the preliminary investigations, which is the most important stage of forming a case.

But this story also has a history of its own. In many branches of revolutionary courts, the court secretary or even the court president, after threatening the defendant that if they do not choose certain lawyers, their case will become more severe, introduce a few names as trusted lawyers of the revolutionary court and by frightening the defendant, push them towards choosing them. This happens especially in cases that may end with a death sentence or life imprisonment, where according to the law, the defendant must have a lawyer. In fact, this addition to the Criminal Procedure Code has institutionalized a method that has been used more or less in courts.

Has there been a similar legal situation that creates such restrictions for defendants in other political systems around the world – especially currently?

I have not conducted any research on the history of similar laws in other countries in order to provide an accurate answer to your question. To obtain such an answer, one must closely examine the state of the right to defense in human rights violating systems such as China and Saudi Arabia.

Mrs. Sadar, how can the right to choose a lawyer in different stages of the trial (before and during the trial) affect the morale of the defendants?

As someone who has been both a defense lawyer and a defendant in security crimes, I can say that the presence of a lawyer is definitely reassuring for the defendants, as at the very least, their function is to act as a third eye and a witness during preliminary investigations. Furthermore, if the defendant can receive legal advice from the moment they are faced with the charges, they will be aware of their rights and be better equipped to deal with illegal interrogations and behaviors such as torture, insults, etc. Generally, judges and interrogators try to follow at least some legal formalities in the presence of lawyers, and they are not as free to act or issue orders. However, there are many exceptions where illegal sentences are issued despite the presence of a lawyer. But I can say with certainty that the main reason the Iranian judicial system has animosity towards lawyers is because they see them as interfering with their unlawful procedures and sentences, especially in political cases; interferences that need to be removed in various ways

As the final question, please tell me how likely you think it is for this clause to be removed or revised?

The new Criminal Procedure Law has finally reached the implementation stage after years, and like any newly passed law, there will not be much room for change for years to come; even if it is just a small amendment. Sometimes, when the media and civil society become sensitive to a law that has been passed and there is no longer any possibility of influencing its content, but this time, the change in this amendment was truly in the 90th minute and under pressure from the Guardian Council, and there was no longer any time for protest. I am not optimistic that such a change will be possible in the near future, and it seems that political defendants will remain deprived of their right to an independent defense for years to come.

Thank you for the opportunity you have given us in the monthly magazine of “Khat-e-Solh”.