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Ibrahim Noori

After a long delay, the law on political crimes was finally approved about 40 years after the February 1979 revolution. This sparked discussions about the definition and examples of political crimes, as well as the serious implementation of Article 168 of the Constitution through the approval of the Political Crimes Law on 11 May 2016. However, this law is not free from legal flaws and contradictions, and it is in need of serious review by the legislature.

Lack of definition of political crime

At first, it is necessary to mention that so far, no legal definition of political crime has been made by jurists. Criminologists believe that there is no acceptable explanatory theory about crime, including political crime.

In addition to factors such as the complexity of the concept of politics, which makes it difficult for lawyers to define a coherent and unified definition of political crime, another fundamental reason for the inability to define political crime is related to human rights, specifically the right to political participation of every individual at any time and place, as one of the fundamental principles of human and citizenship rights.

In crimes against security, there is a conflict between the rights of sovereignty and the rights of citizenship. Due to the importance of anti-security crimes, sovereign rights take precedence over citizenship rights in order to maintain public order and protect the collective interests and benefits through the implementation of strict criminal policies, certain defensive and compensatory measures, and appropriate procedures and authorities. However, in political crimes, unlike anti-security crimes, citizenship rights have been prioritized over sovereign rights.

The three fundamental pillars of citizenship rights are:

• Civil rights; including the right to equal justice, freedom of speech, freedom of religion and belief, and the right to education in one’s mother tongue.

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  Political rights; including the right to participate in free elections by choosing and being chosen, the right to determine one’s own destiny, and the right to choose representatives.

• Social rights; including access to economic welfare and prevention of economic discrimination based on individuals’ place of residence and…

Regarding political rights, it is necessary to mention that in many cases, governments label any kind of action taken to obtain the right to self-determination – whether through theoretical or practical means – as separatism and consider it a threat to national security. This is while the right to self-determination is recognized as a collective right in many international documents, including the United Nations Charter and the International Covenant on Civil and Political Rights, and governments are obligated to remove any obstacles in achieving this right. Separatism is a term used by authoritarian governments to suppress movements seeking national self-determination, and in this way, they criminalize their basic demands by distorting the right to self-determination and political divorce as separatism. As Voltaire said, “the highest degree of corruption is when they use the name of law.” As governments use unjust laws to suppress nations, as the late Katouzian said, “a law without justice has no dignity.”

Perpetrators of political crimes

Political crimes against the government or committed by the government itself through violation of domestic or international laws, such as genocide, enslavement, forced displacement, harassment, torture, conducting illegal medical experiments on humans, and apartheid, occur. On the other hand, by examining the nature of political crimes, the impact of criminal actions on the state and society can also be determined. According to this theory, behaviors that are committed against the government or by the government against its citizens, if they cause harm, will be considered political crimes.

It should be noted that not only in the 1395 Political Crimes Act, but also in other domestic laws, the definition, limits, and scope of determining and prosecuting cases of political crimes committed by the government against the individual and collective rights of humans have not been specified. This silence in domestic laws is while in European, American, and African countries, human rights courts have been established to address citizens’ complaints against government violations of their rights.

Public hearing and presence of the arbitration board.

The philosophy of distinguishing the trial process of political criminals and predicting the legal consequences of their trial is that, since political criminals are not the same as ordinary criminals and, in terms of motivation, they are different from ordinary criminals who have destructive and criminal tendencies, they have the intention of reforming society and creating a path for society to escape from oppression and tyranny. Therefore, measures must be taken in the trial process so that this group of defendants do not feel humiliated and degraded during the trial. For these reasons, the legislator should resort to the principle of public trials and the presence of a fair jury to judge and hear the opinions of citizens regarding the charges against the political defendant. Political and media crimes are among the types of crimes that require more attention to public conscience and public opinion rather than legal knowledge and judicial skills. Therefore, it is better to have an acceptable presence of a fair jury.

The number of members of the judiciary in different countries varies. For example, in France this number is 9 and in England it is 12, who are selected according to specific conditions and regulations. (3) The origin of this non-judicial institution is England and it has been transferred from this country to other governments. The philosophy of the existence of this institution in criminal trials is to involve public opinion in evaluating the harm done to social order and determining an appropriate response to it. According to Article 36 of the Press Law Amendment, there are 21 members of the judiciary in Tehran and 14 members in other provinces, selected from trusted individuals and among various social groups (clergy, university professors, doctors, engineers, writers and journalists, lawyers, secretaries and teachers, guilds, employees, workers, farmers, artists and Basijis). Article 79 of the Constitution of the Constitutional Monarchy stated: “In cases of political and media offenses, the judiciary will be

Article 305 of the Criminal Procedure Code, passed in 1392, was inspired by Article 168 of the Constitution of the Islamic Republic of Iran and stipulates the principle of open trials for defendants of political crimes. However, we have been witnessing for years the holding of closed court sessions and issuing of unfair and unjust verdicts against political activists in Iran.

According to Article 3 of the Criminal Procedure Code regarding the independence of judges, one of the main reasons for holding closed trials for political defendants in the general sense is that the judge himself has a certain bias and opinion and requires more accuracy. This is because in crimes where one side is ruled by political power and authority and the other side is the defendant with political and security charges, can we consider a judge who receives his rights from the government and is appointed and dismissed by the government to be impartial and completely independent? It is certain that such a possibility will be difficult to achieve. (4)

However, if rights are taken as a defensive science, it unintentionally replaces the opaque executive system with a transparent system. For example, during the apartheid era in South Africa, we see that all of Nelson Mandela’s court sessions were held publicly. As Helen Suzman (born Helen Gavronsky), the daughter of a Jewish immigrant from Lithuania and a 13-year member of the South African Parliament as an anti-apartheid activist, despite being white, openly spoke out against the apartheid regime. She frequently visited Nelson Mandela in prison, and Mandela wrote in his autobiography: “Seeing this courageous woman looking into our prison cells and walking in the prison yard was a strange and extraordinary scene. She was the first and only woman to adorn our cells with her presence.”

Contradictions in Legislative Actions in the Law of Political Crimes.

“I am looking for inner peace and tranquility.”

Articles 1 and 2 of the Political Crimes Law, approved in 1395, stipulate that:

Article 1 – Each of the crimes stated in Article 2 of this law, if committed with the intention of reforming the affairs of the country against the management and political institutions or domestic or foreign policies of the country, without intending to harm the principles of the system, shall be considered a political crime.

Article 2- The following crimes shall be considered political crimes if they are in accordance with the conditions specified in Article 1 of this law.

Insulting or slandering the heads of the three branches of government, the head of the Expediency Discernment Council, the vice presidents, ministers, members of the Islamic Consultative Assembly, members of the Assembly of Experts, and members of the Guardian Council due to their responsibilities.

Insulting the president or political representative of a foreign country who is in the territory…

Given that there is a difference between political, ordinary, and security crimes, legal experts predict two criteria for distinguishing between political and non-political and public crimes. One is the external criterion of action; meaning that the action is directed towards the government. The second is the motive of the criminal; meaning that in political crimes, unlike public crimes, the criminal does not have a personal motive or benefit, but rather has a view towards the common good and is motivated by noble and non-selfish intentions. Each of these contradictions in the above criteria is briefly described as follows:

Insult in the dictionary means humiliating and in terminology it means any behavior that leads to the reduction and degradation of a person. Insult is like a crime against the spiritual dignity of a person. Insult is one of the absolute crimes and does not require the realization of a result. In the Islamic Penal Code approved in 1996, the legal element of simple insult is provided by the legislator in Article 608 and other legal cases of aggravated insult are also considered in Articles 609, 517, and 513 to 515.

According to the first clause of Article 1, “with the intention of reforming the affairs of the country against the management and political institutions or domestic or foreign policies of the country,” it is necessary to mention clauses A and B of Article 2:

Firstly, in the classification of crimes in terms of the material element of the crime, insult is an absolute crime. In the sense that, outside of being restricted to obtaining a result, it is an absolute crime. This means that a word or phrase or gesture may be considered a normal speech in one place according to the local and popular culture, but in other areas it may be considered a crime of insult. Therefore, due to the wide range of insults, can this crime be reasonably judged as a political crime?

Secondly, in the first section of Article 1, the legislator has mentioned the motive for committing the crime as “with the motive of reforming the affairs of the country against the management and political institutions or internal or external policies of the country” and in paragraphs (a) and (b) of Article 2, has described the crime of insult. Apart from political crimes, even with the motive of reforming the affairs of the country, is it possible to commit acts of insult in ordinary crimes with a benevolent motive?

Thirdly; criticism in its Greek root means judgment and evaluation based on knowledge and insight. The question that arises is, what is the line between “criticism” of the government’s political performance and political crimes and criminal behaviors?

Not every opposition or protest is considered a criminal act in practical terms. Considering that every opposition or protest falls into three categories: personal, political, and fundamental, it seems that the legislator considers any fundamental protest as a crime against security, which in itself requires careful consideration.

Fourthly, the second clause of Article 1 states that “without intending to strike at the principle of the system, the act shall be considered a political crime.” This also divides political criminals into those within and outside the government.

It is necessary here to address both extra-systemic political crimes and intra-systemic political crimes. Extra-systemic political crimes are crimes in which the impact of the crime is considered. The perpetrator commits one of the general crimes with the intention of overthrowing the political system or striking at the main pillars of the governing political system. Therefore, in these crimes, government institutions are damaged. However, intra-systemic political crimes are crimes in which the perpetrator, without intending to strike at the principles and main framework of the governing political system, criticizes the performance of the rulers or seeks to gain or maintain political power, and in doing so, commits one of the general crimes. In this system, the perpetrator’s motivation in committing a crime against the government and its interests is taken into account. That is, if the criminal’s goal is to satisfy their selfish desires and political ambitions, it is not considered a political crime. However, if the goal is selfless and based on the consideration of public interests

The intention that is determined by the competence of the court and the judiciary in the case at hand, is that this very power of determination creates the grounds for the arbitrary actions of judges and the biased actions of security officials. For example, in the crime of disrupting public order with a political situation, due to the lack of a precise legal definition of the scope of public order, different inferences are made for and against it. It is possible for an action to be considered as disrupting public order by some, and the opposite by others.

According to the second clause of Article 1 of the aforementioned law, radical political discourses (belief in fundamental improvement) are considered outside the scope of the definition of political crimes and are classified as security crimes, which in turn allows for interference in politically charged cases by the police. For example, in the case of Azerbaijani national and civil activists, separatist tendencies, pan-Turkism, etc. have been continuously perpetuated and we have never witnessed such accusations against them in central areas of Iran (meaning, it is impossible for an Isfahani to be accused of separatism or pan-Persianism simply because of their insistence on Isfahani interests or the Isfahani dialect and language).

Sixthly; According to Article 2 of the same law, it does not consider insulting the leadership. This means that:

• The position of leadership is not considered among political positions and the legislator has taken his position into much greater consideration.

• The reason for not predicting a clause in this regard is that any insult to the position of the leadership mentioned in Article 514 of the Islamic Penal Code, which was approved in 1996, in addition to its special spiritual sanctity, is considered a security issue and is one of the unchangeable principles of the Constitution, in addition to independence, republicanism, and Islam, the principle of absolute guardianship of the jurist.

Given the fact that security is divided into two types, internal and external, it is worth considering whether placing individual rights as one of the pillars of national security, without a legal definition of national security, has a strong legal concept. In this regard, any sanctification of something or someone who is the cause of it and is subject to criticism, should be approached rationally.

Seventh; according to the final clause of Article 1 of the Political Crimes Law passed in 1395, which states “without intending to harm the principles of the system”, any act that aims to harm the principles of the system is considered a security crime. The question now is:

Aside from the fact that the concept of security is not clearly defined in domestic laws, and according to Article 9 of the Constitution, no authority has the right to restrict legitimate freedoms in the name of preserving the country’s independence and territorial integrity, and Articles 6 and 7 of the third article of the Constitution also emphasize the elimination of any form of despotism and self-sufficiency and the guarantee of political and social freedoms. Now, if someone, relying on their civil, political, and social rights, demands a referendum, for example, if the constitutional laws are not enforced, any action by that individual will be considered a crime against security by the government, which is also a violation of the right to determine one’s own destiny. This is while the goal of most political activists is to achieve high ideals, loyalty to human principles, belief in sacrifice, and ultimately rebellion resulting from dignity, which creates a sense of admiration and respect for them in the public mind. Because in political

Unfortunately, even after the approval of the political crime law, there has been no reconsideration of the law and procedures for prosecuting crimes such as warfare, corruption on earth, and oppression.

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Political criminals, who often oppose the government due to patriotism and defense of human ideals, and ultimately seek to establish a government that aligns with their own beliefs and opinions, are unlike ordinary criminals who are generally despised and hated by the public, and sometimes even praised. However, when it comes to determining the boundaries and distinguishing political crimes from ordinary crimes from a scientific perspective, the difficulty of the task becomes apparent. Historical developments show that governments, depending on their stability and type (democratic and liberal or autocratic), have had a unified understanding of political crime and their behavior towards political criminals has varied from conciliatory to extremely harsh.

In summary, it can be said that “political crime” is essentially a “government-determined crime” that is defined by the ruling class, taking into account the public opinion of society. From a legal perspective, the definition of political crime has not been established due to the legitimacy of human rights and political rights. However, in most cases, it is evident that governments resort to any illegal actions towards political activists in order to maintain their power, and with an ideological view, they restrict the actions of political activists by imposing various punishments. It is also necessary to mention that nowadays, due to modern reasons, including the rapid spread of information through visual and written media, rulers are somewhat limited in avoiding police policies. However, intentional delays by rulers in providing citizenship and human rights education through various institutions such as schools, radio, and television have created a monolithic government that hinders the development of public opinion regarding political and criminal rights in these societies.

We conclude with a quote from Martin Luther King, Jr., a noble fighter: “One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty.”

Notes:

1. Ian, Jeffrey, translated by Hossein Gholami, Political Crime Transformations, Tehran: Samt Publications, 2014, p. 40.

2. Sadiqi, Hossein Mir Mohammad, Crimes Against Security and Public Order, Tehran: Mizan Publishing, 1394, p. 25.

3. Agriculture, Abbas, Political Crime, Tehran, Tehran: Ghoghnoos Publications, 1377, p. 88.

4. Gilasian, Ruzbeh, From Pursuit to Prison, Electronic Publication, 1396, p. 56.

5. Ardabili, Mohammad Ali, Public Criminal Law – Volume 1, Tehran: Mizan, p. 260.