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Hossein Raeisi

One of the criteria for fair trial in the structure of the human rights system is the necessity of the right to have a chosen and knowledgeable lawyer who is familiar with all the laws related to the subject of the accusation in the criminal justice system. This right is recognized in various international human rights documents, including Article 14 of the International Covenant on Civil and Political Rights adopted in 1966 and the Basic Principles on the Role of Judges and Lawyers adopted by the United Nations in 1990. Iran is one of the countries that has signed the International Covenant on Civil and Political Rights. Therefore, it is obligated to regulate and approve all its laws and judicial behaviors based on the standards set forth in this document of international commitment.

In addition to the commitment to international human rights under Article 35 of the Constitution, the judiciary is obligated to recognize the right to have a lawyer for all citizens. Although it is not expected for the Islamic Republic system to fully implement all principles and standards of human rights, it is obligated to secure and guarantee the interests of citizens and any legislation that restricts citizens’ rights is not legally legitimate. Therefore, (as we will see later) adding a clause to Article 48 of the new Criminal Procedure Code that violates human rights, citizenship rights, and goes against the interests of the people. In the following, we will briefly analyze the triple consequences of violating international human rights commitments, non-compliance with the Constitution, and neglecting the interests of the public and citizenship rights in this legislative approach.

History of the story.

Article 48 of the new Criminal Procedure Code, before recent amendments, states: “Upon being placed under supervision, the accused may request the presence of a lawyer. The lawyer must meet with the person under supervision while considering the confidentiality of investigations and negotiations, and at the end of the meeting, the lawyer may provide written observations to be included in the case file, which should not exceed one hour.”

Note – If a person is under surveillance due to being accused of committing one of the organized crimes or crimes against the internal or external security of the country, theft, drugs and psychotropic substances, or crimes mentioned in clauses (a), (b), and (c) of Article 302 of this law, they do not have the right to meet with a lawyer until one week after the start of the surveillance.

This law is approved by the Guardian Council and recognized as the final law. Until a group of 18 representatives of the previous parliament, before the necessary implementation of this law and some other articles that to some extent violate the principles of human rights, submit a proposal to amend 40 articles of this law to the parliament; in August 2014, this proposal is announced in the parliament. This action marks the beginning of a strange innovation in the peculiar structure of legislation in Iran. Finally, this group succeeds in easily presenting their security concerns to the conservative parliament and article 48 is changed, resulting in an amendment to its footnote. “In crimes against internal or external security and organized crimes that are subject to Article 302 of this law, preliminary investigations are carried out without the presence of a lawyer, if necessary, upon the proposal of the investigator and the approval of the prosecutor. The order issued in this regard can be protested within ten days in the competent court dealing with the main charge.” On

Despite the fact that it was decided for the law to be implemented on the first of Tir month, between the 24th and 27th of Khordad, the Judicial Commission of the Parliament revised this clause and addressed the concerns of the Guardian Council in order to ease the minds of security agencies and police departments who are not interested in seeing independent lawyers defend their clients. This amendment was made to prevent unlawful actions such as torture, solitary confinement, and instilling fear and terror in the detained individual in order to achieve an illegal goal, as well as to ensure that confessions are not coerced. The amendment states: “In cases related to national and international security, as well as organized crimes punishable under Article 302 of this law, during the preliminary investigation stage, the parties involved may choose their own lawyer from among the official lawyers approved by the head of the judiciary. The names of these lawyers will be announced by the head of the judiciary.”

This action, which means giving the power to appoint a lawyer to attend the investigation and interrogations until the end of the trial in court, to the head of the judiciary, is in line with ensuring the safety of corrupt officials, law-breaking investigators, and the approval of torture and various illegal methods for obtaining confessions. This law, which has taken more than 5 years to be finally approved, is now changing completely with a slight breeze from security agencies in the final moments of this month of Khordad. The legislative body, which has been unaccountable to the people and their rights, is leaving behind an important legacy of innovation.

The first issue in this discussion is the direct and indirect obligation of people’s right to employ an independent lawyer outside of courts and government to defend them with public liberties and the principle of innocence before being proven guilty in court with exceptional circumstances (the presumption of innocence).

Having a lawyer protects the rights of the people from encroachment by the government, security forces, and police. No one has the right to be arrested arbitrarily or without valid and legal reasons. Who can protect this freedom? It is natural that an independent lawyer, who is trusted by the people and has no connection to the government or the judiciary, will possess such qualities.

According to Article 35 of the Constitution, the right to have a lawyer without any limitations is recognized. The only permission that the judiciary has is to facilitate the selection of a lawyer for individuals who lack the necessary financial ability, and nothing else.

The Iranian Constitution in Article 9 prohibits any type of limitation or denial of public freedoms, even through legislation. In other principles, the Constitution in the chapter on the rights of the nation has accepted the minimum standards of public freedoms from Articles 19 to 38. The actions of the Parliament and the Guardian Council in amending the clause of Article 48, which deprives people of their rights to have a lawyer and interferes with their access to justice, are in violation of these principles.

The second issue of the right to have a lawyer with a fair trial is that the criminal justice system in Iran, due to the constant conflict between jurisprudence and law in its field and the non-permanent nature of the trial laws in the 37 years after the revolution until now, has put people in a situation where they do not have the necessary trust in the judicial system. In addition, a chosen and desired lawyer can help create public trust. While this provision, by allowing the head of the judiciary to interfere in the selection of lawyers, will maintain its own flawed and outdated cycle of public trust and will not move towards improving public trust.

The third issue relates to the contradiction between the limitation on access to a free lawyer and the principles and standards of human rights. According to Article 14 of the International Covenant on Civil and Political Rights, all people have the right to access a lawyer at all stages of legal proceedings. Due to Iran’s accession to this international document, guaranteeing this right is considered one of the government’s obligations.

Regardless of guaranteeing the desired right, having a mandatory lawyer goes against the principle of innocence and any violation or limitation of this right will result in its revocation. While this right is recognized in Article 37 of the Constitution.

As a result: Imposing restrictions on this right due to lack of trust in the judicial power and government by the people, and lawyers’ disregard for the principle of innocence. Having the right to defense and access to a lawyer is not only for facilitating the trial or having knowledge of legal conditions, but also for ensuring equality between the parties in criminal cases and guaranteeing criminal justice. By disrupting this principle, the criminal justice system will continue to be tainted in society.

In criminal cases, prosecutors, police, and security forces have authority, resources, and legal knowledge. In contrast, there is an individual who has no precise knowledge of legal matters and is not capable or powerful enough to defend against the accusations. Therefore, the principle of criminal justice and the necessity of equality and parity between the two parties in a criminal case creates the obligation for the chosen lawyer of the accused to have the ability, independence, and equal power to confront the prosecutor. The limitations mentioned in the clause pave the way for the denial of the fundamental rights of the accused, the continuation, realization, and enforcement of the principle of guilt instead of the principle of innocence.