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Mohammad Moghimi

The right to defense through a chosen lawyer is one of the ways to support the rights of suspects and ensure fair trial in pre-trial stages and during the trial. In the domestic laws of countries and international human rights documents, the right to freely choose a lawyer is mentioned as one of the principles of fair trial. In this regard, Article 35 of our country’s Constitution refers to the right to choose a lawyer during the trial and states: “In all courts, the parties 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 one.” However, Article 48 of the Criminal Procedure Code of 2013 also emphasizes the right to choose a lawyer in pre-trial stages and states: “Upon being placed under supervision, the accused can request the presence of a lawyer. The lawyer must meet with the person under supervision while respecting the confidentiality of investigations and negotiations, and can provide their written observations at the

However, in the recent days of the implementation of the Criminal Procedure Code, the amendment of Article 48 of this law has unfortunately raised doubts about the right to choose a lawyer in some crimes. The mentioned amendment states: “In crimes against the internal and external security of the country and also organized crimes that are subject to Article 302 of this law, in the preliminary investigation stage, the parties of the lawsuit choose their lawyer or lawyers from among the official lawyers of the judiciary who are approved by the head of the judiciary. The names of these lawyers are announced by the head of the judiciary.” The right to have a chosen lawyer should not be limited to a number of lawyers. As the Human Rights Committee states, if a list of lawyers is presented to the defendant to choose one of them, the right to choose a lawyer is violated.

Furthermore, the announced list is considered to be a clear discrimination; whether it is that twenty lawyers have been preferred to over twenty thousand lawyers in the Central Bar Association without any reason. It should be noted that according to international human rights documents, the constitution and ordinary laws of our country, any form of discrimination is prohibited and the only exception is positive discrimination.

On the other hand, this clause violates the right to work and the right to acquire for lawyers. In fact, lawyers who are not present on this list are unjustifiably deprived of their right to defend in security crimes (political and religious) and crimes under Article 302 of the Islamic Penal Code. This deprivation is one of the most prominent examples of violating the right to work and the right to acquire for lawyers. Therefore, it is appropriate and necessary for the lawyers whose names are on this list to declare their innocence, so that they do not suffer any further damage to their position and profession as lawyers, and the right to defense of citizens remains protected. Of course, it is expected that citizens who are accused will also refrain from accepting appointed and government lawyers. It is much better to be deprived of a lawyer in such cases.

“Most importantly, the violation of the right to defense and the right to have a chosen lawyer is a violation of citizens’ rights. If a law is incompatible with justice, ethics, conscience, natural rights, or human rights standards, is a person obligated to obey it or are they allowed to disobey such a law? Furthermore, under what circumstances and for how long should citizens resist an unjust law?”

In fact, civil disobedience is a document to the public conscience of society as one of the guarantees of human rights enforcement, which pursuing and continuing it is a movement towards changing unjust laws. The law must be formulated and enforced in a way that evokes a sense of respect from citizens and the law itself must be respected; otherwise, what difference does the law have from the decrees of self-appointed rulers? As stated in the preamble of the Universal Declaration of Human Rights: “…human rights must be protected by the rule of law so that humans are not forced to resort to rebellion against oppression and injustice.”