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Mohammad Mohabbai

The new Criminal Procedure Code, which was approved in 1392 and had beneficial changes and new legal provisions for the criminal justice system, remained for further amendments in the ninth parliament. Between 1392 and 1394 (the date of implementation of this law), new articles and clauses were added that shed light on the positive changes of this law. One of these changes was Article 48 and its subsequent clause.

Article 48, which is in the section of preliminary investigations of the Criminal Procedure Code, is as follows: “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 the investigations and discussions, and at the end of the meeting, the lawyer can present their written observations to be included in the case file. The meeting should not exceed one hour.”

Note – In cases of crimes against domestic or foreign security, as well as organized crimes that are subject to Article 302 of this law, in the preliminary investigation stage, the parties to the lawsuit may choose their own lawyer or lawyers from among the official lawyers approved by the head of the judiciary. The names of these lawyers are announced by the head of the judiciary.

As stated in the definition and clause of Article 48 of the law, this clause restricts the people’s right to access a lawyer, which is contrary to Article 35 of the Constitution and international principles and against the International Covenant on Civil and Political Rights, which has also been approved by both houses of parliament. It also goes against citizenship rights and this session emphasizes the removal of this clause in future parliamentary decisions, as it is nearing the end of its trial period.

However, in every country, there are certain sensitive files that have a high level of national security, such as files involving military and security officials. Many defenders of this clause have defended it out of ignorance or recklessness and have shifted the discussions towards national security. However, for military trials, there is a separate law and procedure in the Iranian legal system. Article 625 of the Criminal Procedure Code specifies the role of lawyers in cases involving military personnel. In military trials, only lawyers approved by the Judicial Organization of the Armed Forces can defend the accused. This is because military secrets should not be revealed to anyone; however, there is still much debate on this issue, as trust in the lawyer is always assumed. If there is no trust, all lawyers must be approved by the government. This is neither possible nor beneficial, nor rational, and goes against the principles of lawyer independence and the institution of lawyering. However, exceptionally and in the interest of the country, the role of lawyers in military

The main problem here is that despite the fact that in 1395 (2016-2017), the “Political Crimes Law” was approved and enforced, almost all political cases in Iran have taken on a security aspect. And according to the leaders of the Islamic Republic, “there are no political prisoners in Iran”! Because the overall view of the Islamic Republic system towards all political cases is a security-oriented one. It was expected that with the approval of the Political Crimes Law, this view would change, but apparently the problem of removing the security label from political cases will continue. Considering the deep political, economic, social, and environmental crises in Iran, the Islamic Republic system has a great interest in securitizing all issues; even in recent months, environmental discussions have surprisingly been portrayed as security issues by tribunes affiliated with the Islamic Republic.

This clause has been heavily criticized by many legal experts from the beginning. Interestingly, even the judiciary was against it. Even Gholamhossein Elham, one of the most hardline legal experts in the Islamic Republic’s judicial and legal system, and a former member and spokesperson of the Guardian Council, and with a history of being a spokesperson for the judiciary and the government, was also against this clause after its approval. He wrote on his Telegram channel during the implementation of this clause: “Amending clause 48 of the Criminal Procedure Code has been a subject of dispute and objection by legal experts from the beginning. In the beginning, in 2013, this clause deprived the accused of access to a lawyer for one week at the beginning of being placed under supervision in cases where the charges were organized crimes, against security, theft, drugs, or crimes resulting in life imprisonment, amputation, or intentional bodily harm with a diyya (blood money) of more than half or more

It should be noted that the Judiciary Research Institute, as well as the head of this branch, made some amendments to it before the implementation of this law. The scope of crimes included in the parliamentary resolution in Article 48 was much broader than the current text of the article, to the extent that it had become so corrupt that even among the members of the central bar association, the joke of closing the bar association had been raised. Almost all cases with crimes punishable by more than 5 years of imprisonment were placed within the limits of this article. The amendment made by the Judiciary Research Institute and approved by the Legal and Judicial Commission of the Parliament, firstly, limited the scope of crimes to those against security, organized crimes, and serious crimes that carry the punishment of death, life imprisonment, or amputation, and secondly, the right to have a lawyer in this stage was subject to the necessity of the prosecutor’s recommendation and approval, but the Guardian Council deemed this limitation contrary to Article 35

Although the provision that was finally passed into law has many differences with its draft, it still violates Article 35 of the Constitution. This provision not only violates the right to freely choose a lawyer, but also has flaws such as the unlawful expansion of powers of the head of the judiciary beyond the limits set in the Constitution, and the denial of will and independence in the formation of civil contracts (lawyer-client relationship is a civil contract).