One of the most fundamental rights emphasized in human rights rules and standards is the right to access to fair trial, and one of the essential indicators necessary for achieving fair trial is the right to access to a lawyer in the process of trial. In other words, access to a lawyer is considered one of the elements of achieving fair trial. This access must be fast, free, unconditional, and provided at all stages of the trial so that it can be said that access to a lawyer has been achieved.

The right to access to a lawyer has been mentioned in the most important international human rights documents; even in the Universal Declaration of Human Rights, which is generally considered the expression of fundamental and essential human rights, in Article 11 it states: “Everyone charged with a criminal offense has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.” This implicitly includes the right to access to a lawyer; because in legal practice, it can be said that all the rights of the accused in defending themselves are guaranteed when he has immediate, free and unconditional access to a lawyer, and otherwise it is obvious that he has not benefited from all the rights in defending himself.

In other documents and standards, human rights have also emphasized and explained the right to access a lawyer; including part (b) of Article 14 of the International Covenant on Civil and Political Rights, which states that this right is granted to the accused to “have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing.” Additionally, in part (d) of the same article, this right is considered for the accused to “be present at the trial and defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.”

The set of principles for the protection of all persons under any form of detention or imprisonment, adopted by General Assembly resolution 43/173 of 9 December 1988, also emphasizes in some of its principles (including principles 17 and 18) the right of a detained person to have access to a lawyer, the obligation of competent authorities to inform the detained person of this right, and to provide reasonable facilities for the exercise of this right, and the right of the detained person to communicate and consult with their lawyer. A notable point in this international document is the use of the term “detained person” instead of “accused”, which expands the scope of the right to access a lawyer.

“In numerous other international documents, the right to access a lawyer has been recognized as an inviolable right and as one of the fundamental elements of access to fair trial, which is not mentioned in all of these documents and international standards. This abundance and repetition regarding the right to access a lawyer indicates the transformation of this right into a customary international legal norm, and based on this, countries around the world have addressed the independent recognition of this right in their laws and regulations, especially in their constitutions.”

The right to access a lawyer in domestic laws in Iran.

The regulatory system of Iran has not fallen far behind in this caravan and has to a reasonable extent recognized this fundamental right; including in the highest law in the hierarchy of laws in Iran, namely the Constitution, and in Article 35 of this law it is stated: “In all courts, the parties to a lawsuit have the right to choose a lawyer for themselves, and if they are unable to choose a lawyer, facilities must be provided for them to appoint a lawyer.”

In the laws governing the judicial process, this right of identification and application has also been recognized; including in Article 31 of the Law of Civil Procedure for Public and Revolutionary Courts which states: “Each of the parties may choose and introduce a maximum of two lawyers for themselves.” Or in Article 5 of the Criminal Procedure Law which states: “The accused must be informed of the charges and evidence against them as soon as possible and must have access to a lawyer and other defense rights mentioned in this law.”

Unfortunately, despite the fact that in criminal proceedings, access to a lawyer is considered more necessary than other judicial proceedings, we witness the creation of restrictions and conditions for this right, which can sometimes violate the principle of this right and nullify its implementation. For example, although in Article 48 of the Criminal Procedure Code, this right is considered for the accused to request the presence of a lawyer from the beginning of being under supervision, the controversial provision of this article states: “In crimes against internal or external security, as well as organized crimes punishable under Article 302 of this law, in the preliminary investigation stage, the parties can choose their own lawyer from among the official lawyers of the judiciary approved by the head of the judiciary. The names of these lawyers are announced by the head of the judiciary.”

The content of this article clearly restricts and narrows the right to choose a lawyer, and this limitation and restriction not only contradicts the principles of international human rights, but it can even be said to contradict the application stated in Article 35 of the Constitution. If the Guardian Council carefully and constantly examined this provision, it would declare its content to be conditional and limited, and therefore in contradiction with this law.

Therefore, according to Article 48 of the Criminal Procedure Code, which restricts the right to access a lawyer and essentially imposes a limited number of lawyers on individuals in need of a lawyer, it is clearly in violation of the right to choose a lawyer and therefore violates this right.

In general, it can be said that as long as the Iranian legislator does not consider the right to access a lawyer as one of the fundamental and non-negotiable principles of fair trial, we will witness the existence and even expansion of such exceptions and restrictions that violate human rights; especially since some judicial authorities and officials also have a considerable readiness and inclination to take advantage of such legal deficiencies.